Part IIIC—Carriage to which the Montreal No. 4 Convention applies
25J
Interpretation
In this Part:
the Convention means the Montreal No. 4
Convention.
25K
Effect of Convention in Australia
(1) Subject to this Part, the Convention has
the force of law in Australia in relation to any carriage by air to which the
Convention applies, irrespective of the nationality of the aircraft performing
that carriage.
(2) A reference in this Part to the
Convention is to be read, unless the contrary intention appears, as a reference
to the Convention as having the force of law because of this section.
25L
Application of certain provisions of Part IV
Sections 35 to 39 (inclusive) apply
to carriage to which the Convention applies in the same way as they apply to
carriage under Part IV, and for that purpose:
(a) a reference in section 37 to
Part IV is taken to be a reference to this Part and the Convention; and
(b) any other reference to Part IV
is taken to be a reference to the Convention.
25M
Jurisdiction of State courts preserved
For the purposes of section 38 of
the Judiciary Act 1903, an action under the Convention is taken not to
be a matter arising directly under a treaty.
25N
Evidence of certain matters
(1) The Minister may, by notice published in
the Gazette, from time to time declare:
(a) who are the Parties to the
Convention; and
(b) the territory in respect of which
any Party is bound by the Convention; and
(c) the extent to which any Party has
availed itself of a reservation permitted by the Convention.
(2) A notice under this section is evidence
of the matters declared..
Part IV—Other carriage to which this Act applies
26
Interpretation
(1) In this Part, unless the contrary
intention appears:
airline licence means:
(a) an international airline licence
in force under the Air Navigation Regulations; or
(b) an Air Operator’s Certificate in
force under the Civil Aviation Act 1988 authorising airline operations;
or
(c) a New Zealand AOC with ANZA
privileges (as defined in section 3 of the Civil Aviation Act 1988)
authorising airline operations.
baggage, in relation to a passenger, means:
(a) registered baggage; or
(b) baggage, personal effects or other
articles, not being registered baggage, in the possession of the passenger, or
in the possession of another person (being a person accompanying the passenger
or a servant or agent of the carrier) on behalf of the passenger, while the
passenger is on board an aircraft for the purposes of carriage to which this
Part applies or during the course of any of the operations of embarking or
disembarking.
charter licence means:
(a) a charter licence in force under
the Air Navigation Regulations; or
(b) an Air Operator’s Certificate in
force under the Civil Aviation Act 1988 authorising charter operations;
or
(c) a New Zealand AOC with ANZA
privileges (as defined in section 3 of the Civil Aviation Act 1988)
authorising charter operations.
commercial transport operations means
operations in which an aircraft is used, for hire or reward, for the carriage
of passengers or cargo.
contract includes an arrangement made without
consideration.
domestic carrier means a carrier operating a
flight for the carriage of passengers:
(a) between a place in a State and a
place in another State; or
(b) between a place in a Territory and
a place in Australia outside that Territory; or
(c) between
a place in a Territory and another place in that Territory;
other than carriage to which Part 2 or 3 applies.
registered baggage, in relation to a
passenger, means baggage, personal effects or other articles registered with
the carrier as baggage intended to be carried under a contract for carriage of
the passenger to which this Part applies.
the Air Navigation Regulations means the Air
Navigation Regulations in force under the Air Navigation Act 1920, and
includes those Regulations as in force by virtue of a law of a State.
(2) For the purposes of this Part, where, by
reason of a contract of charter or other contract between the holder of an
airline licence or a charter licence and another person, persons or baggage are
or is carried, or are or is to be carried, in an aircraft while it is being
operated by the holder of the airline licence or charter licence, that contract
shall be deemed to be a contract of carriage providing for that carriage.
27
Application of Part [see
Note 3]
(1) This Part applies to the carriage of a passenger
where the passenger is or is to be carried in an aircraft being operated by the
holder of an airline licence or a charter licence in the course of commercial
transport operations, or in an aircraft being operated in the course of trade
and commerce between Australia and another country, under a contract for the
carriage of the passenger:
(a) between a place in a State and a
place in another State;
(b) between a place in a Territory and
a place in Australia outside that Territory;
(c) between a place in a Territory and
another place in that Territory; or
(d) between
a place in Australia and a place outside Australia;
not being carriage to which the Warsaw Convention, the
Hague Protocol, the Montreal Protocol No. 4 or the Guadalajara
Convention applies.
(3) For the purposes of this section, where,
under a contract of carriage, the carriage is to begin and end in the one State
or Territory (whether at the one place or not) but is to include a landing or
landings at a place or places outside that State or Territory, the carriage
shall be deemed to be carriage between the place where the carriage begins and
that landing place, or such one of those landing places as is most distant from
the place where the carriage begins, as the case may be.
(4) For the purposes of this section, where:
(a) the carriage of a passenger
between two places is to be performed by two or more carriers in successive
stages;
(b) the carriage has been regarded by
the parties as a single operation, whether it has been agreed upon by a single
contract or by two or more contracts; and
(c) this
Part would apply to that carriage if it were to be performed by a single
carrier under a single contract;
this Part applies in relation to a part of that carriage
notwithstanding that that part consists of carriage between a place in a State
and a place in the same State.
28
Liability of the carrier for death or injury
Subject to this Part, where this Part
applies to the carriage of a passenger, the carrier is liable for damage
sustained by reason of the death of the passenger or any personal injury
suffered by the passenger resulting from an accident which took place on board
the aircraft or in the course of any of the operations of embarking or
disembarking.
29
Liability of the carrier in respect of baggage
(1) Where this Part applies to the carriage
of a passenger, the carrier is liable under this Part, and not otherwise, for
damage sustained in the event of the destruction or loss of, or injury to,
baggage of the passenger, if the occurrence which causes the destruction, loss
or injury takes place during the period of the carriage by air unless the
carrier proves that he and his servants and agents took all necessary measures
to avoid the destruction, loss or injury or that it was impossible for him or
them to take such measures.
(2) For the purposes of the last preceding
subsection but subject to the next succeeding subsection, the period of the
carriage by air comprises:
(a) in relation to baggage other than
registered baggage—the period during which the passenger is on board the
aircraft or is in the course of any of the operations of embarking or
disembarking; and
(b) in relation to registered
baggage—the period during which the baggage is in the charge of the carrier,
whether on board the aircraft or elsewhere.
(3) In proceedings under this section in
respect of registered baggage, if the carrier proves that the baggage was,
within a period of twelve hours after the arrival of the aircraft at the place
to which the baggage was to be carried in the aircraft, available for
collection by the passenger at a place at which, under the contract, the
baggage was to be or could be made available to the passenger, the period of
the carriage by air shall not be deemed to include any time after the
expiration of that period of twelve hours.
(4) In the application of section 39 in
relation to an action under this Part in respect of baggage other than
registered baggage, the carrier shall be deemed to have proved that the damage
was caused by the negligence of the passenger, except so far as the passenger
proves that he was not responsible for the damage.
(5) Where, in relation to carriage referred
to in subsection (4) of section 27, registered baggage has been
destroyed, lost or injured in circumstances in which, if the carriage had been
performed by a single carrier, that carrier would be subject to liability under
this section, the carriers (other than a carrier who proves that the baggage
was not in his charge at the time of the destruction, loss or injury) are
jointly and severally subject to that liability.
30
Complaint to be made in respect of baggage
(1) For the purposes of an action under this
Part, evidence proving receipt of registered baggage, without complaint, by the
person entitled to delivery is evidence that the baggage has been delivered in
good condition and in accordance with the contract of carriage.
(2) An action does not lie against a carrier
under this Part in respect of baggage, except in case of fraud on the part of the
carrier, unless the passenger, or a person acting on his behalf, has complained
by writing delivered to the carrier or served on the carrier by post or in such
other manner as is prescribed:
(a) in the case of injury to
registered baggage or of loss or destruction of part only of an item of
registered baggage—within the period of three days after the date of receipt by
or on behalf of the passenger of the baggage, or of the remainder of that item
of baggage, as the case may be;
(b) in the case of loss or destruction
of the whole of an item of registered baggage—within the period of twenty‑one
days from the date on which the baggage should have been placed at the disposal
of the passenger; or
(c) in the case of injury to, or loss
or destruction of, baggage other than registered baggage—within the period of
three days from the date on which the carriage of the passenger ended.
(3) A court having jurisdiction in actions
under this Part in respect of baggage may, by order, grant leave to a person to
institute or continue an action in that court in relation to baggage
notwithstanding that there has been a failure to complain in accordance with
the last preceding subsection within the time fixed by that subsection, where
the court is satisfied that it is just and equitable to do so by reason of
special circumstances.
(4) Subsection (2) does not apply in
relation to an action in respect of which leave has been granted under the last
preceding subsection.
31
Limitation of liability
(1) Subject to the regulations relating to
passenger tickets, the liability of a domestic carrier under this Part in
respect of each passenger, by reason of his injury or death resulting from an
accident, is limited to:
(a) where neither paragraph (b)
nor paragraph (c) applies—$500,000;
(b) where, at the date of the
accident, a regulation was in force prescribing an amount higher than $500,000
for the purposes of this subsection but paragraph (c) does not apply—the
amount prescribed by that regulation; or
(c) if, at the date of the accident,
no regulation was in force under paragraph (b) but the contract of
carriage under which the passenger was carried specified the limit of the
carrier’s liability as an amount that exceeds $500,000—the amount so specified;
or
(d) if, at the date of the accident, a
regulation prescribing an amount was in force as mentioned in paragraph (b)
but the contract of carriage under which the passenger was carried specified an
amount that exceeds that amount as the limit of the carrier’s liability—the amount
so specified.
(1A) Subject to the regulations relating to
passenger tickets, the liability under this Part of a carrier to which this
Part applies, other than a domestic carrier, in respect of each passenger, by
reason of the passenger’s injury or death resulting from an accident, is
limited to:
(a) if neither paragraph (b) nor
(c) applies—260,000 SDRs; or
(b) if, at the date of the accident, a
regulation was in force prescribing a number of SDRs that exceeds 260,000 for
the purpose of this section and paragraph (c) does not apply—the number of
SDRs so prescribed; or
(c) if, at the date of the accident,
no regulation was in force under paragraph (b) but the contract of
carriage under which the passenger was carried specified the limit of the
carrier’s liability as a number of SDRs that exceeds 260,000—the number of SDRs
so specified; or
(d) if, at the date of the accident, a
regulation prescribing a number of SDRs exceeding 260,000 was in force under paragraph (b)
but the contract of carriage under which the passenger was carried specified
the limit of the carrier’s liability as a number of SDRs that exceeds the
number so prescribed—the number of SDRs so specified.
(2) Subject to the regulations relating to
baggage checks, the liability of a carrier under this Part in respect of the
destruction or loss of, or injury to, the baggage of any one passenger, being
baggage that is, or includes, registered baggage, is limited to:
(a) where neither paragraph (b)
nor paragraph (c) applies—$900;
(b) where, at the date of the
occurrence that caused the destruction, loss, or injury, a regulation was in
force prescribing an amount higher than $900 for the purposes of this
subsection but paragraph (c) does not apply—the amount prescribed by that
regulation; or
(c) where an amount that exceeds:
(i) if, at the date of the
occurrence referred to in paragraph (b), no regulation was in force as
mentioned in that paragraph—$900; or
(ii) if,
at the date of the occurrence referred to in paragraph (b), a regulation
prescribing an amount was in force as mentioned in that paragraph—the amount
prescribed by the regulation;
is specified, in the contract of
carriage pursuant to which the passenger was carried, as the limit of the
carrier’s liability—the amount so specified.
(3) The liability of a carrier under this
Part in respect of the destruction or loss of, or injury to, the baggage, other
than registered baggage, of any one passenger is limited to:
(a) where neither paragraph (b)
nor paragraph (c) applies—$90;
(b) where, at the date of the
occurrence that caused the destruction, loss or injury, a regulation was in
force prescribing an amount higher than $90 for the purposes of this subsection
but paragraph (c) does not apply—the amount prescribed by that regulation;
or
(c) where an amount that exceeds:
(i) if, at the date of the
occurrence referred to in paragraph (b), no regulation was in force as
mentioned in that paragraph—$90; or
(ii) if,
at the date of the occurrence referred to in paragraph (b), a regulation prescribing
an amount was in force as mentioned in that paragraph—the amount prescribed by
that regulation;
is specified, in the contract of
carriage pursuant to which the passsenger was carried, as the limit of the
carrier’s liability—the amount so specified.
32
Contracting out
(1) Any provision of an agreement tending to
relieve the carrier of liability in accordance with this Part or to fix a lower
limit than the appropriate limit of liability provided by this Part is null and
void, but the nullity of such a provision does not involve the nullity of the
whole contract of carriage.
(2) The last preceding subsection does not
apply to provisions governing loss or damage resulting from the inherent
defect, quality or vice of goods carried.
33
Servants and agents of carrier
(1) If an action in respect of any damage is
brought against a servant or agent of a carrier, the servant or agent, if he
proves that he acted within the scope of his employment or authority, is
entitled to avail himself of the limits of liability, if any, which the carrier
himself would be entitled to invoke under section 31 in an action against
him in respect of that damage.
(2) The aggregate of the amounts recoverable
from the carrier, his servants and agents shall not exceed the limits referred
to in the last preceding subsection.
(3) The right to bring an action against a
servant or agent of a carrier in respect of any damage, being damage which gave
rise to a cause of action against the carrier under this Part, is extinguished
if the action is not brought within the time specified in the next succeeding
section.
34
Limitation of actions
The right of a person to damages under
this Part is extinguished if an action is not brought by him or for his benefit
within two years after the date of arrival of the aircraft at the destination,
or, where the aircraft did not arrive at the destination;
(a) the date on which the aircraft
ought to have arrived at the destination; or
(b) the
date on which the carriage stopped;
whichever is the later.
35
Liability in respect of death
(1) The provisions of this section apply in
relation to liability imposed by this Part on a carrier in respect of the death
of a passenger (including the injury that resulted in the death).
(2) Subject to section 37, the liability
under this Part is in substitution for any civil liability of the carrier under
any other law in respect of the death of the passenger or in respect of the
injury that has resulted in the death of the passenger.
(3) Subject to the next succeeding
subsection, the liability is enforceable for the benefit of such of the members
of the passenger’s family as sustained damage by reason of his death.
(4) To the extent that the damages
recoverable include loss of earnings or profits up to the date of death, or
funeral, medical or hospital expenses paid or incurred by the passenger before
his death or by his personal representative, the liability is enforceable for
the benefit of the personal representative of the passenger in his capacity as
personal representative.
(5) For the purposes of subsection (3),
the members of the passenger’s family shall be deemed to be the wife or
husband, de facto spouse, parents, step‑parents, grandparents, brothers,
sisters, half‑brothers, half‑sisters, children, step‑children
and grandchildren of the passenger, and, in ascertaining the members of the
passenger’s family, an illegitimate person or an adopted person shall be
treated as being, or as having been, the legitimate child of his mother and
reputed father or, as the case may be, of his adoptors.
(6) The action to enforce the liability may
be brought by the personal representative of the passenger or by a person for
whose benefit the liability is, under the preceding provisions of this section,
enforceable, but only one action shall be brought in respect of the death of
any one passenger, and such an action, by whomsoever brought, shall be for the
benefit of all persons for whose benefit the liability is so enforceable who
are resident in Australia or, not being resident in Australia, express the
desire to take the benefit of the action.
(7) The damages recoverable in the action
include loss of earnings or profits up to the date of death and the reasonable
expenses of the funeral of the passenger and medical and hospital expenses
reasonably incurred in relation to the injury that resulted in the death of the
passenger.
(8) In awarding damages, the court or jury is
not limited to the financial loss resulting from the death of the passenger.
(9) Subject to the next succeeding
subsection, the amount recovered in the action, after deducting any costs not
recovered from the defendant, shall be divided amongst the persons entitled in
such proportions as the court (or, where the action is tried with a jury, the
jury) directs.
(10) The court may at any stage of the
proceedings make any such order as appears to the court to be just and
equitable in view of the provisions of this Part limiting the liability of the
carrier and of any proceedings which have been, or are likely to be, commenced
against the carrier, whether in or outside Australia.
36
Liability in respect of injury
Subject to the next succeeding section,
the liability of a carrier under this Part in respect of personal injury
suffered by a passenger, not being injury that has resulted in the death of the
passenger, is in substitution for any civil liability of the carrier under any
other law in respect of the injury.
37
Certain liabilities not excluded
Nothing in this Part shall be deemed to
exclude any liability of a carrier:
(a) to indemnify an employer of a
passenger or any other person in respect of any liability of, or payments made
by, that employer or other person under a law of the Commonwealth or of a State
or Territory providing for compensation, however described, in the nature of
workers’ compensation; or
(b) to
pay contribution to a tort‑feasor who is liable in respect of the death
of, or injury to, the passenger;
but this section does not operate so as to increase the
limit of liability of a carrier in respect of a passenger beyond the amount
fixed by or in accordance with this Part.
38
Proceeds of insurance policies etc.
In assessing damages in respect of
liability under this Part there shall not be taken into account by way of
reduction of the damages:
(a) a sum paid or payable on the death
of, or injury to, a passenger under a contract of insurance;
(b) a sum paid or payable out of a
superannuation, provident or like fund, or by way of benefit from a friendly
society, benefit society or trade union;
(c) any sum in respect of a pension,
social service benefit or repatriation benefit paid or payable, consequent upon
the death or injury, by any government or person;
(d) in the case of death, any sum in
respect of the acquisition by a spouse or child of the deceased, consequent
upon the death, of, or of an interest in, a dwelling used at any time as the
home of that spouse or child, or of, or of an interest in, the household
contents of any such dwelling; or
(e) a premium that would have become
payable under a contract of insurance in respect of the life of a deceased
passenger if he had lived beyond the time at which he died.
39
Contributory negligence
(1) If, in an action against a carrier under
this Part, the carrier proves that the damage was caused or contributed to by
the negligence of the passenger, the damages recoverable shall be assessed in
accordance with this section.
(2) The court shall first determine the
damages that would have been recoverable if there were no limit on the amount
of those damages fixed by or in accordance with this Part and there had been no
negligence on the part of the passenger.
(3) The damages determined under the last
preceding subsection shall be reduced to such extent as the court thinks just
and equitable having regard to the share of the passenger in the responsibility
for the damage.
(4) If the damages as reduced in accordance
with the last preceding subsection exceed the maximum liability of the carrier
fixed by or in accordance with this Part, the court shall further reduce the
damages to that maximum amount.
(5) Where any case to which subsection (1)
applies is tried with a jury, the jury shall determine the damages referred to
in subsection (2) and the amount of the reduction under subsection (3).
40
Regulations relating to passenger tickets and baggage checks
The regulations may make provision
relating to passenger tickets and baggage checks in respect of passengers or
baggage in relation to whom or which this Part applies, being provision for:
(a) the circumstances in which such
tickets and checks must be issued by carriers;
(b) matters to be included in such
tickets and checks; and
(c) the non‑application of a
provision of section 31 (except in cases where the limit of liability under
that provision is a sum specified in the contract of carriage) where specified
provisions of the regulations relating to the issue, form and contents of such
tickets or checks have not been complied with.
41
Application of Part to cargo
The regulations may provide for
applying, with such exceptions, adaptations and modifications as are
prescribed, the provisions of the Montreal No. 4 Convention and any of the
provisions of this Act to and in relation to the carriage of cargo, being
carriage in relation to which, if it were the carriage of passengers, this Part
would apply, but so that no adaptation or modification of the provisions of
Article 22 of the Montreal No. 4 Convention shall have the effect of
limiting the liability of the carrier to a sum less than the sum to which his
liability would be limited if those provisions were applied without adaptation
or modification.
Part IVA—Carriers to be insured against liability to passengers for
death or personal injury
41A
Object of Part
The object of this Part is to require
carriers to hold, in respect of carriage to which Part II, III or IV
applies, insurance that will ensure, as far as practicable, that compensation
within the limits of liability prescribed by this Act will be paid in respect
of death or personal injury suffered by passengers on aircraft.
41B
Definitions
In this Part:
acceptable contract of insurance means a
contract of insurance in respect of which a certificate is in force under
subsection 41C(7).
business day means a day other than a
Saturday, a Sunday or a public holiday in the Australian Capital Territory.
carrier means a person engaged, or offering
to engage, in an air transport operation for the carriage of passengers to
which Part II, III or IV applies.
CASA means the Civil Aviation Safety
Authority established by the Civil Aviation Act 1988.
contract of insurance means a contract
between a carrier and an insurer under which the insurer indemnifies the
carrier against personal injury liability in respect of each passenger carried,
or to be carried, by air by the carrier.
Director has the same meaning as in the Civil
Aviation Act 1988.
member has the same meaning as in the Civil
Aviation Act 1988.
personal injury liability, in relation to a
carrier, means liability under this Act in respect of the death of, or personal
injury suffered by, passengers carried, or to be carried, by air by the
carrier.
41C
Carriers may be required to produce evidence that an acceptable contract of
insurance is in force between the carrier and an insurer
(1) CASA may, at any time and from time to
time, by written notice given to a carrier (other than a carrier that is, or is
an agent of, the Crown in any capacity), require the carrier, within a period
set out in the notice, to produce evidence, satisfactory to CASA, that there is
in force between the carrier and an insurer a contract of insurance that meets
the prescribed requirements.
(2) The prescribed requirements are:
(a) the requirements of subsections (3)
and (4); and
(b) any other requirements made by the
regulations for the purposes of this section.
(3) It is a requirement in relation to a
contract of insurance that, under the contract, the insurer’s liability to
indemnify the carrier against personal injury liability, in respect of each
passenger carried, or to be carried, by air by the carrier, is for an amount
that is not less than:
(a) in respect of carriage by a
domestic carrier to which Part IV applies—$500,000; or
(b) in respect of any other
carriage—260,000 SDRs.
(4) It is a requirement of a contract of
insurance that, under the contract, the insurer’s liability to indemnify the
carrier against personal injury liability:
(a) is not affected by any breach of a
safety‑related requirement imposed by or under any Act or by the Civil
Aviation Safety Authority; and
(b) is not contingent upon the
financial condition or solvency of the carrier or upon the carrier not being or
not becoming bankrupt or not beginning to be or not being wound up.
(5) The prescribed requirements do not prevent
a contract of insurance from including provisions indemnifying the carrier
against a liability other than personal injury liability.
(6) A contract of insurance under which:
(a) the insurer indemnifies the
carrier against liability as required by Part 205 of the Federal Aviation
Regulations of the United States of America made under the law known as Title
49 United States Code—Transportation; and
(b) the insurer’s liability to
indemnify the carrier:
(i) extends to carriage
in, to or from Australia; and
(ii) is
not affected by any breach of a requirement referred to in paragraph (4)(a);
is taken to meet the requirements referred to in subsection (4).
(7) If CASA is satisfied that there is in
force between a carrier and an insurer a contract of insurance that meets the
prescribed requirements, CASA may give the carrier a written certificate
stating that CASA is so satisfied.
41CA
Carrier that is, or is an agent of, the Crown may be required to show that
adequate financial arrangements exist to discharge personal injury liability of
the carrier
(1) CASA may, at any time and from time to
time, by written notice to a carrier that is, or is an agent of, the Crown in
any capacity, require the carrier, within a period set out in the notice, to
produce evidence, satisfactory to CASA, that financial arrangements exist that
are adequate to discharge any personal injury liability that has accrued or may
accrue to the carrier.
(2) If CASA is satisfied that such financial
arrangements exist, CASA may give the carrier a written certificate stating
that CASA is so satisfied.
41D
Insurer’s liability not affected by exclusions or breaches
Except as prescribed by the regulations,
an insurer’s liability under a contract of insurance to indemnify the carrier
against personal injury liability to the extent mentioned in subsection 41C(3)
is not affected by any warranty or exclusion in the contract of insurance or by
any breach of the contract of insurance by the carrier.
41E
Carriers to be covered by acceptable insurance
(1) A carrier (other than a carrier that is,
or is an agent of, the Crown in any capacity) must not carry passengers by air
unless an acceptable contract of insurance is in force in relation to the
carrier.
(1A) If a carrier who is, or is an agent of, the
Crown in any capacity has been required by CASA under section 41CA to
produce evidence, satisfactory to CASA, of the existence of financial
arrangements referred to in that section, the carrier must not carry passengers
by air unless the carrier has produced such evidence.
(2) A carrier who intentionally contravenes subsection (1)
is guilty of an offence punishable on conviction by imprisonment for a period
of not more than 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose in respect of an offence an appropriate fine instead of, or
in addition to, a term of imprisonment. If a body corporate is convicted of an
offence, subsection 4B(3) of that Act allows a court to impose a fine of an
amount that is not greater than 5 times the maximum fine that could be imposed
by the court on an individual convicted of the same offence.
41F
Conduct by directors, servants and agents
(1) If, in proceedings for an offence against
this Part, it is necessary to establish the state of mind of a body corporate
in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
a director, servant or agent of the body corporate within the scope of his or
her actual or apparent authority; and
(b) that the director, servant or
agent had the state of mind.
(2) Any conduct engaged in on behalf of a
body corporate by a director, servant or agent of the body corporate within the
scope of his or her actual or apparent authority is taken, for the purposes of
a prosecution for an offence against this Part, to have been engaged in also by
the body corporate unless the body corporate establishes that it took
reasonable precautions and exercised due diligence to avoid the conduct.
(3) If, in proceedings for an offence against
this Part, it is necessary to establish the state of mind of an individual in
relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
a servant or agent of the individual within the scope of his or her actual or
apparent authority; and
(b) that the servant or agent had the
state of mind.
(4) Any conduct engaged in on behalf of an
individual by a servant or agent of the individual within the scope of his or
her actual or apparent authority is taken, for the purposes of a prosecution
for an offence against this Part, to have been engaged in also by the
individual unless the individual establishes that he or she took reasonable
precautions and exercised due diligence to avoid the conduct.
(5) If:
(a) a person who is an individual is
convicted of an offence; and
(b) the
person would not have been convicted of the offence if subsections (3) and
(4) had not been enacted;
the person is not liable to be punished by imprisonment
for the offence.
(6) A reference in subsection (1) or (3)
to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion,
belief or purpose of the person; and
(b) the person’s reasons for the
intention, opinion, belief or purpose.
(7) A reference in this section to a director
of a body corporate includes a reference to a constituent member of, or to a
member of a board or other group of persons administering or managing the
affairs of, a body corporate incorporated for a public purpose by a law of the
Commonwealth, of a State or of a Territory.
(8) A reference in this section to engaging
in conduct includes a reference to failing or refusing to engage in conduct.
(9) A reference in this section to an offence
against this Part includes a reference to an offence created by section 6
of the Crimes Act 1914 or section 11.1, 11.4 or 11.5 of the Criminal
Code that relates to this Part.
41G
Grounds of cancellation of contract of insurance not affected
Nothing in this Part affects:
(a) the grounds on which an insurer
may cancel a contract of insurance between the insurer and a carrier; or
(b) any right that an insurer may have
to recover from a carrier an amount paid by the insurer under a contract of
insurance between the insurer and the carrier.
41H
Conflict of laws
If:
(a) the proper law of a contract of
insurance would, except for a term that it should be the law of a foreign
country or a term to a similar effect, be the law of any part of Australia; or
(b) a
contract of insurance contains a term that purports to substitute, or has the
effect of substituting, the law of a foreign country for all or any of the
provisions of this Part;
this Part applies to the contract despite that term.
41J
Injunctions
(1) In this section:
prohibited carriage means carriage by a
carrier at a time when an acceptable contract of insurance is not in force
between the carrier and an insurer.
(2) If CASA has reason to believe that a
carrier has engaged, or is proposing to engage, in prohibited carriage, CASA
may apply to a court of competent jurisdiction for an injunction restraining
the carrier from engaging in the carriage.
(3) If the carrier does not satisfy the court
that it is not engaging, or proposing to engage, in prohibited carriage, the
court must grant the injunction.
(4) If in the opinion of the court it is
desirable to do so, the court may grant an interim injunction pending
determination of an application under subsection (2).
(5) The court may discharge or vary an
injunction or an interim injunction granted under this section.
(6) The power of the court to grant an
injunction or an interim injunction restraining a carrier from engaging in
prohibited carriage may be exercised:
(a) whether or not it appears to the
court that the carrier intends to engage again, or to continue to engage, in
prohibited carriage of that kind; and
(b) whether or not the carrier has
previously engaged in prohibited carriage of that kind.
(7) A court must not require CASA, as a
condition of granting an interim injunction, to give any undertakings as to
damages.
(8) The Federal Court of Australia is
invested with federal jurisdiction in matters where CASA applies for an
injunction or an interim injunction under this section.
41K
Regulations
The regulations may make provision for or
in relation to:
(a) the manner and form in which
notices may be given under subsection 41C(1); and
(b) the period that may be set out in
such notices; and
(c) the manner and form in which
evidence is to be produced under that subsection; and
(d) the giving by persons referred to
in the regulations (who may be individuals not resident in Australia or
corporations not incorporated or carrying on business in Australia) of notice
(whether in advance, or after the occurrence of the event concerned) to CASA of
any modification, cancellation, non‑renewal or expiry, or of any proposed
modification, cancellation or non‑renewal, or of any impending expiry, of
an acceptable contract of insurance; and
(e) the
consequences (including any effect on the contract of insurance) of failure to
give a notice referred to in paragraph (d).
41L
Delegation
(1) The Director may, in writing, delegate
all or any of CASA’s powers under this Part to:
(a) a member; or
(b) a member of the staff of CASA.
(2) The power of delegation referred to in paragraph (1)(b)
includes a power to delegate a power to any member of the staff of CASA from
time to time holding, occupying, or performing the duties of, a specified
office or position, even if the office or position does not come into existence
until after the delegation is given.
(3) If:
(a) the Director has, under this
section, delegated a power of CASA contained in a provision of this Part; and
(b) a delegate exercises the power;
a reference in that provision to CASA is taken, in
relation to the exercise of the power by the delegate, to be a reference to the
delegate.
41M
Saving
Any action taken or any other thing done
by, or in relation to, the Minister or a delegate of the Minister before the
commencement of this section is to be treated after that commencement as if it
had been taken or done by or in relation to CASA.
Part V—Miscellaneous
41N Corresponding
State laws may confer functions and powers on Commonwealth authorities and
officers
A law of a State may confer functions
and powers on Commonwealth authorities and officers for the purposes of any of
the provisions of sections 41B to 41M as those provisions apply as a law
of the State, either with or without modifications, and those Commonwealth
authorities and officers may perform or exercise the functions or powers so
conferred.
42
Stowaways [see Note
3]
(1) Where a person travels in an aircraft
without the consent of the carrier and Part II, Part III, Part IIIC
or Part IV would apply in relation to the carriage of that person if he
were a passenger carried under a contract for his carriage for reward between
the place where he boarded the aircraft and his place of disembarkation, the
liability (if any) of the carrier, or of his servants or agents, in respect of
that person and his baggage is subject to the limits as to amounts that are
applicable in respect of passengers under that Part.
(2) This section does not impose any
liability on a carrier or a servant or agent of a carrier to which he is not
subject apart from this section.
(3) For the purposes of this section, the
place of disembarkation of a person shall be deemed to be the next scheduled
stopping place after the place at which he boards the aircraft or, if he
continues on board after the aircraft leaves that next scheduled stopping
place, the scheduled stopping place next after the last stopping place from
which the aircraft departed with that person on board.
43
Regulations
The
Governor‑General may make regulations, not inconsistent with this Act, prescribing
all matters which by this Act are required or permitted to be prescribed, or
which are necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
Schedules
Schedule 1—Convention for the unification of certain rules relating to
international carriage by air
Section 9(1)
Chapter I—Scope—Definitions
Article 1
1. This
Convention applies to all international carriage of persons, baggage or cargo
performed by aircraft for reward. It applies equally to gratuitous carriage by
aircraft performed by an air transport undertaking.
2. For
the purposes of this Convention the expression “international carriage” means
any carriage in which, according to the agreement between the parties, the
place of departure and the place of destination, whether or not there be a
break in the carriage or a transhipment, are situated either within the
territories of two High Contracting Parties, or within the territory of a
single High Contracting Party, if there is an agreed stopping place within a
territory subject to the sovereignty, suzerainty, mandate or authority of
another Power, even though that Power is not a party to this Convention. A
carriage without such an agreed stopping place between territories subject to
the sovereignty, suzerainty, mandate or authority of the same High Contracting
Party is not deemed to be international for the purposes of this Convention.
3. Carriage
to be performed by several successive air 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, 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. The
Convention applies to carriage performed by the State or by legally constituted
public bodies provided it falls within the conditions laid down in Article 1.
2. This
Convention does not apply to carriage performed under the terms of any
international postal Convention.
Chapter II—Documents of Carriage
SECTION 1—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 this 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 Convention. 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 Convention 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 this 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 Convention. 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 the Convention
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 Convention.
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
air 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 this 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 Convention 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 air 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 inquire into the correctness or sufficiency
of such information or documents.
Chapter III—Liability of the Carrier
Article 17
The
carrier is liable for damage sustained in the event of the death or wounding of
a passenger or any other bodily injury suffered by a passenger, if the accident
which caused the damage so sustained took place on board the aircraft or in the
course of any of the operations of embarking or disembarking.
Article 18
1. The
carrier is liable for damage sustained in the event of the destruction or loss
of, or of damage to, any registered baggage or any cargo, if the occurrence
which caused the damage so sustained took place during the carriage by air.
2. The
carriage by air within the meaning of the preceding paragraph comprises the
period during which the baggage or cargo is in charge of the carrier, whether in
an aerodrome or on board an aircraft, or, in the case of a landing outside an
aerodrome, in any place whatsoever.
3. The
period of the carriage by air does not extend to any carriage by land, by sea
or by river performed outside an aerodrome. If, however, such a carriage takes
place in the performance of a contract for carriage by air, for the purpose of
loading, delivery or trans‑shipment, 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 and 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
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 125,000 francs. Where, in accordance with the law of the
Court seised of the case, damages may be awarded in the form of periodical
payments, the equivalent capital value of the said payments shall not exceed
125,000 francs. 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 250 francs per kilogram, unless the consignor has made,
at the time when the package was handed over to the carrier, a special
declaration of the value at delivery 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
actual value to the consignor at delivery.
3. As
regards objects of which the passenger takes charge himself the liability of
the carrier is limited to 5,000 francs per passenger.
4. The
sums mentioned above shall be deemed to refer to the French franc consisting of
65½ milligrams gold of millesimal fineness 900. These sums may be converted
into any national currency in round figures.
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
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 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 Convention.
2. In
the cases covered by Article 17 the provisions of the preceding paragraph also
apply, without prejudice to the questions as to who are the 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
Convention 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 Convention against those legally representing
his estate.
Article 28
1. An
action for damages must be brought, at the option of the plaintiff, in the
territory of one of the High Contracting Parties, either before the Court
having jurisdiction where the carrier is ordinarily resident, or has his
principal place of business, or 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 Convention, and is deemed to be one of the contracting parties to the
contract of carriage in so far as the contract deals with that part of the
carriage which is performed under his supervision.
2. In
the case of carriage of this nature, the passenger or his representative can
take action only against the carrier who performed the carriage during which
the accident or the delay occurred, save in the case where, by express
agreement, the first carrier has assumed liability for the whole journey.
3. As
regards baggage or cargo, the passenger or consignor will have a right of
action against the first carrier, and 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, or damage or delay took place. These carriers
will be jointly and severally liable to the passenger or to the consignor or
consignee.
Chapter IV—Provisions Relating to
Combined Carriage
Article 31
1. In
the case of combined carriage performed partly by air and partly by any other
mode of carriage, the provisions of this Convention apply only to the carriage
by air, provided that the carriage by air falls within the terms of Article 1.
2. Nothing
in this Convention shall prevent the parties in the case of combined carriage
from inserting in the document of air 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—General and Final Provisions
Article 32
Any
clause contained in the contract and all special agreements entered into before
the damage occurred by which the parties purport to infringe the rules laid
down by this Convention, whether by deciding the law to be applied, or by
altering the rules as to jurisdiction, shall be null and void. Nevertheless for
the carriage of cargo arbitration clauses are allowed, subject to this
Convention, if the arbitration is to take place within one of the jurisdictions
referred to in the first paragraph of Article 28.
Article 33
Nothing
contained in this Convention shall prevent the carrier either from refusing to
enter into any contract of carriage, or from making regulations which do not
conflict with the provisions of this Convention.
Article 34
This
Convention 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 Convention means current days not working
days.
Article 36
The
Convention is drawn up in French in a single copy which shall remain deposited
in the archives of the Ministry for Foreign Affairs of Poland and of which one
duly certified copy shall be sent by the Polish Government to the Government of
each of the High Contracting Parties.
Article 37
1. This
Convention shall be ratified. The instruments of ratification shall be
deposited in the archives of the Ministry for Foreign Affairs of Poland, which
will notify the deposit to the Government of each of the High Contracting
Parties.
2. As
soon as this Convention shall have been ratified by five of the High Contracting
Parties it shall come into force as between them on the ninetieth day after the
deposit of the fifth ratification. Thereafter it shall come into force between
the High Contracting Parties who shall have ratified and the High Contracting
Party who deposits his instrument of ratification on the ninetieth day after
the deposit.
3. It
shall be the duty of the Government of the Republic of Poland to notify to the
Government of each of the High Contracting Parties the date on which this
Convention comes into force as well as the date of the deposit of each
ratification.
Article 38
1. This
Convention shall, after it has come into force, remain open for accession by
any State.
2. The
accession shall be effected by a notification addressed to the Government of
the Republic of Poland, which will inform the Government of each of the High
Contracting Parties thereof.
3. The
accession shall take effect as from the ninetieth day after the notification
made to the Government of the Republic of Poland.
Article 39
1. Any
one of the High Contracting Parties may denounce this Convention by a
notification addressed to the Government of the Republic of Poland, which will
at once inform the Government of each of the High Contracting Parties.
2. Denunciation
shall take effect six months after the notification of denunciation, and shall
operate only as regards the Party who shall have proceeded to denunciation.
Article 40
1. Any
High Contracting Party may, at the time of signature or of deposit of
ratification or of accession declare that the acceptance which he gives to this
Convention does not apply to all or any of his colonies, protectorates,
territories under mandate, or any other territory subject to his sovereignty or
his authority, or any territory under his suzerainty.
2. Accordingly
any High Contracting Party may subsequently accede separately in the name of
all or any of his colonies, protectorates, territories under mandate or any
other territory subject to his sovereignty or to his authority or any territory
under his suzerainty which has been thus excluded by his original declaration.
3. Any
High Contracting Party may denounce this Convention, in accordance with its
provisions, separately or for all or any of his colonies, protectorates,
territories under mandate or any other territory subject to his sovereignty or
to his authority, or any other territory under his suzerainty.
Article 41
Any
High Contracting Party shall be entitled not earlier than two years after the
coming into force of this Convention to call for the assembling of a new
international Conference in order to consider any improvements which may be
made in this Convention. To this end he will communicate with the Government of
the French Republic which will take the necessary measures to make preparations
for such Conference.
This
Convention done at Warsaw on the 12th October, 1929, shall remain open for
signature until the 31st January, 1930.
[Here
follow the signatures of the Plenipotentiaries of the States (including Australia)
on behalf of which the Convention was signed.]
Additional
Protocol
(with reference to Article 2)
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.
[Here
follow the signatures of the Plenipotentiaries of the States (including Australia)
on behalf of which the Additional Protocol was signed.]
Schedule 2—The Warsaw Convention as
amended at the Hague
Section 8
Article
XIX of the Hague Protocol provides that, as between the parties to the
Protocol, the Warsaw Convention and the Protocol are to be read and interpreted
together as one single instrument, to be known as the “Warsaw Convention as
amended at The Hague, 1955”.
The
text in this Schedule contains:
(a) the operative provisions of the Warsaw
Convention as modified by Chapter I of the Hague Protocol; and
(b) the remaining provisions of the Protocol.
OPERATIVE
PROVISIONS OF THE WARSAW CONVENTION, AS MODIFIED BY THE
HAGUE PROTOCOL
Chapter
I—Scope—Definitions
Article 1
1. This
Convention applies to all international carriage of persons, baggage or cargo
performed by aircraft for reward. It applies equally to gratuitous carriage by
aircraft performed by an air transport undertaking.
2. For
the purposes of this Convention, the expression international carriage
means any carriage in which, according to the agreement between the parties,
the place of departure and the place of destination, whether or not there be a
break in the carriage or a transhipment, are situated either within the
territories of two High Contracting Parties or within the territory of a single
High Contracting Party if there is an agreed stopping place within the
territory of another State, even if that State is not a High Contracting Party.
Carriage between two points within the territory of a single High Contracting
Party without an agreed stopping place within the territory of another State is
not international carriage for the purposes of this Convention.
3. Carriage
to be performed by several successive air 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, and it does not lose its
international character merely because one contract or a series of contracts is
to be performed entirely within the territory of the same State.
Article 2
1. The
Convention applies to carriage performed by the State or by legally constituted
public bodies provided it falls within the conditions laid down in Article 1.
2. This
Convention shall not apply to carriage of mail and postal packages.
Chapter II—Documents of Carriage
Section 1—Passenger
Ticket
Article 3
1. In
respect of the carriage of passengers a ticket 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 High Contracting Party, one or more agreed stopping
places being within the territory of another State, an indication of at least
one such stopping place;
(c) a notice to the effect that, if the passenger’s journey
involves an ultimate destination or stop in a country other than the country of
departure, the Warsaw Convention may be applicable and that the Convention
governs and in most cases limits the liability of carriers for death or
personal injury and in respect of loss of or damage to baggage.
2. The
passenger ticket shall constitute prima facie evidence of the conclusion
and conditions of the contract of carriage. 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 Convention. Nevertheless, if, with the consent of the carrier, the
passenger embarks without a passenger ticket having been delivered, or if the
ticket does not include the notice required by paragraph 1(c) of this Article,
the carrier shall not be entitled to avail himself of the provisions of Article
22.
Section 2—Baggage
Check
Article 4
1. In
respect of the carriage of registered baggage, a baggage check shall be
delivered, which, unless combined with or incorporated in a passenger ticket
which complies with the provisions of Article 3, paragraph 1, shall contain:
(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 High Contracting Party, one or more agreed stopping
places being within the territory of another State, an indication of at least
one such stopping place;
(c) a notice to the effect that, if the carriage involves an
ultimate destination or stop in a country other than the country of departure,
the Warsaw Convention may be applicable and that the Convention governs and in
most cases limits the liability of carriers in respect of loss of or damage to
baggage.
2. The
baggage check shall constitute prima facie evidence of the registration
of the baggage and of the conditions of the contract of carriage. 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 Convention. Nevertheless, if the carrier takes charge of the
baggage without a baggage check having been delivered or if the baggage check
(unless combined with or incorporated in the passenger ticket which complies
with the provisions of Article 3, paragraph 1(c)) does not include the notice
required by paragraph 1(c) of this Article, he shall not be entitled to avail
himself of the provisions of Article 22, paragraph 2.
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 Convention.
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 prior to the loading of the cargo on board the aircraft.
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
air waybills when there is more than one package.
Article 8
The
air waybill shall contain:
(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 High Contracting Party, one or more agreed stopping
places being within the territory of another State, an indication of at least
one such stopping place;
(c) a notice to the consignor to the effect that, if the
carriage involves an ultimate destination or stop in a country other than the
country of departure, the Warsaw Convention may be applicable and that the
Convention governs and in most cases limits the liability of carriers in
respect of loss of or damage to cargo.
Article 9
If,
with the consent of the carrier, cargo is loaded on board the aircraft without
an air waybill having been made out, or if the air waybill does not include the
notice required by Article 8, paragraph (c), the carrier shall not be
entitled to avail himself of the provisions of Article 22, paragraph 2.
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 shall indemnify the carrier against all damage suffered by him, 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.
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 air 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.
3. Nothing
in this Convention prevents the issue of a negotiable 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 inquire into the correctness or sufficiency
of such information or documents.
Chapter III—Liability of the Carrier
Article 17
The carrier is liable for damage sustained in the event
of the death or wounding of a passenger or any other bodily injury suffered by
a passenger, if the accident which caused the damage so sustained took place on
board the aircraft or in the course of any of the operations of embarking or
disembarking.
Article 18
1. The
carrier is liable for damages 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 trans‑shipment, any damage is presumed, subject to
proof to the contrary, to have been the result of an event which took place
during the carriage by air.
Article 19
The
carrier is liable for damage occasioned by delay in the carriage by air of
passengers, baggage or cargo.
Article 20
The
carrier is not liable if he proves that he and his servants and agents have
taken all necessary measures to avoid the damage or that it was impossible for
him or them to take such measures.
Article 21
If
the carrier proves that the damage was caused by or contributed to by the
negligence of the injured person the Court may, in accordance with the
provisions of its own law, exonerate the carrier wholly or partly from his
liability.
Article 22
1. In
the carriage of persons the liability of the carrier for each passenger is
limited to the sum of two hundred and fifty thousand francs. Where, in
accordance with the law of the court seised of the case, damages may be awarded
in the form of periodical payments, the equivalent capital value of the said
payments shall not exceed two hundred and fifty thousand francs. Nevertheless,
by special contract, the carrier and the passenger may agree to a higher limit
of liability.
2. (a) In
the carriage of registered baggage and of cargo, the liability of the carrier
is limited to a sum of two hundred and fifty francs per kilogramme, unless the
passenger or consignor has made, at the time when the package was handed over
to the carrier, a special declaration of interest in delivery at destination
and has paid a supplementary sum if the case so requires. In that case the carrier
will be liable to pay a sum not exceeding the declared sum, unless he proves
that the sum is greater than the passenger’s or consignor’s actual interest in
delivery at destination.
(b) In
the case of loss, damage or delay of part of registered baggage or cargo, or of
any object contained therein, the weight to be taken into consideration in
determining the amount to which the carrier’s liability is limited shall be
only the total weight of the package or packages concerned. Nevertheless, when
the loss, damage or delay of a part of the registered baggage or cargo, or of
an object contained therein, affects the value of other packages covered by the
same baggage check or the same air waybill, the total weight of such package or
packages shall also be taken into consideration in determining the limit of
liability.
3. As
regards objects of which the passenger takes charge himself the liability of
the carrier is limited to five thousand francs per passenger.
4. The
limits prescribed in this Article shall not prevent the court from awarding, in
accordance with its own law, in addition, the whole or part of the court costs
and of the other expenses of the litigation incurred by the plaintiff. The
foregoing provision shall not apply if the amount of the damages awarded,
excluding court costs and other expenses of 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, or before the
commencement of the action, if that is later.
5. The
sums mentioned in francs in this Article shall be deemed to refer to a currency
unit consisting of sixty‑five and a half milligrammes of gold of
millesimal fineness nine hundred. These sums may be converted into national
currencies in round figures. Conversion of the sums into national currencies
other than gold shall, in case of judicial proceedings, be made according to
the gold value of such currencies at the date of the judgment.
Article 23
1. Any
provision tending to relieve the carrier of liability or to fix a lower limit
than that which is laid down in 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.
2. Paragraph
1 of this Article shall not apply to provisions governing loss or damage
resulting from the inherent defect, quality or vice of the cargo carried.
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 Convention.
2. In
the cases covered by Article 17 the provisions of the preceding paragraph also
apply, without prejudice to the questions as to who are the persons who have
the right to bring suit and what are their respective rights.
Article 25
The
limits of liability specified in Article 22 shall not apply if it is proved
that the damage resulted from an act or omission of the carrier, his servants
or agents, done with intent to cause damage or recklessly and with knowledge
that damage would probably result; provided that, in the case of such act or
omission of a servant or agent, it is also proved that he was acting within the
scope of his employment.
Article 25A
1. If
an action is brought against a servant or agent of the carrier arising out of
damage to which this Convention relates, such servant or agent, if he proves
that he acted within the scope of his employment, shall be entitled to avail
himself of the limits of liability which that carrier himself is entitled to
invoke under Article 22.
2. The
aggregate of the amounts recoverable from the carrier, his servants and agents,
in that case, shall not exceed the said limits.
3. The
provisions of paragraphs 1 and 2 of this Article shall not apply if it is
proved that the damage resulted from an act or omission of the servant or agent
done with intent to cause damage or recklessly and with knowledge that damage
would probably result.
Article 26
1. Receipt
by the person entitled to delivery of baggage or cargo without complaint is
prima facie evidence that the same has been delivered in good condition and in
accordance with the document of carriage.
2. In
the case of damage, the person entitled to delivery must complain to the
carrier forthwith after the discovery of the damage, and, at the latest, within
seven days from the date of receipt in the case of baggage and fourteen days
from the date of receipt in the case of cargo. In the case of delay the
complaint must be made at the latest within twenty‑one days from the date
on which the baggage or cargo have been placed at his disposal.
3. Every
complaint must be made in writing upon the document of carriage or by separate
notice in writing despatched within the times aforesaid.
4. Failing
complaint within the times aforesaid, no action shall lie against the carrier,
save in the case of fraud on his part.
Article 27
In
the case of the death of the person liable, an action for damages lies in
accordance with the terms of this Convention against those legally representing
his estate.
Article 28
1. An
action for damages must be brought, at the option of the plaintiff, in the
territory of one of the High Contracting Parties, either before the Court
having jurisdiction where the carrier is ordinarily resident, or has his
principal place of business, or 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 Convention, and is deemed to be one of the contracting parties to the
contract of carriage in so far as the contract deals with that part of the
carriage which is performed under his supervision.
2. In
the case of carriage of this nature, the passenger or his representative can
take action only against the carrier who performed the carriage during which
the accident or the delay occurred, save in the case where, by express
agreement, the first carrier has assumed liability for the whole journey.
3. As
regards baggage or cargo, the passenger or consignor will have a right of
action against the first carrier, and 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, or damage or delay took place. These carriers will
be jointly and severally liable to the passenger or to the consignor or
consignee.
Chapter IV—Provisions Relating to
Combined Carriage
Article 31
1. In
the case of combined carriage performed partly by air and partly by any other
mode of carriage, the provisions of this Convention apply only to the carriage
by air, provided that the carriage by air falls within the terms of Article 1.
2. Nothing
in this Convention shall prevent the parties in the case of combined carriage
from inserting in the document of air 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—General and Final Provisions
Article 32
Any
clause contained in the contract and all special agreements entered into before
the damage occurred by which the parties purport to infringe the rules laid
down by this Convention, whether by deciding the law to be applied, or by
altering the rules as to jurisdiction, shall be null and void. Nevertheless for
the carriage of cargo arbitration clauses are allowed, subject to this
Convention, if the arbitration is to take place within one of the jurisdictions
referred to in the first paragraph of Article 28.
Article 33
Nothing
contained in this Convention shall prevent the carrier either from refusing to
enter into any contract of carriage, or from making regulations which do not
conflict with the provisions of this Convention.
Article 34
The
provisions of Articles 3 to 9 inclusive relating to documents of carriage shall
not apply in the case of carriage performed in extraordinary circumstances
outside the normal scope of an air carrier’s business.
Article 35
The
expression “days” when used in this Convention means current days not working
days.
Article 36
The
Convention is drawn up in French in a single copy which shall remain deposited
in the archives of the Ministry for Foreign Affairs of Poland and of which one
duly certified copy shall be sent by the Polish Government to the Government of
each of the High Contracting Parties.
Article 40A
1. In
Article 37, paragraph 2 and Article 40, paragraph 1, the expression High Contracting
Party shall mean State. In all other cases, the expression High Contracting
Party shall mean a State whose ratification of or adherence to the
Convention has become effective and whose denunciation thereof has not become
effective.
2. For
the purposes of the Convention the word territory means not only the
metropolitan territory of a State but also all other territories for the
foreign relations of which that State is responsible.
Article 41
Any
High Contracting Party shall be entitled not earlier than two years after the
coming into force of this Convention to call for the assembling of a new
international Conference in order to consider any improvements which may be
made in this Convention. To this end he will communicate with the Government of
the French Republic which will take the necessary measures to make preparations
for such Conference.
Additional Protocol
(with reference to Article 2)
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.
REMAINING PROVISIONS
OF THE HAGUE PROTOCOL
PROTOCOL
to
amend the Convention for the Unification of Certain Rules Relating to
International Carriage by Air Signed at Warsaw on 12 October 1929
THE
GOVERNMENTS UNDERSIGNED
CONSIDERING
that it is desirable to amend the Convention for the Unification of Certain
Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929, HAVE AGREED as follows:
Chapter I—Amendments to the Convention
[omitted]
Chapter II—Scope of Application of the
Convention as Amended
Article XVIII
The
Convention as amended by this Protocol shall apply to international carriage as
defined in Article 1 of the Convention, provided that the places of departure
and destination referred to in that Article are situated either in the territories
of two parties to this Protocol or within the territory of a single party to
this Protocol with an agreed stopping place within the territory of another
State.
Chapter III—Final Clauses
Article XIX
As
between the Parties to this Protocol, the Convention and the Protocol shall be
read and interpreted together as one single instrument and shall be known as
the Warsaw Convention as amended at The Hague, 1955.
Article XX
Until
the date on which this Protocol comes into force in accordance with the provisions
of Article XXII, paragraph 1, it shall remain open for signature on behalf of
any State which up to that date has ratified or adhered to the Convention or
which has participated in the Conference at which this Protocol was adopted.
Article XXI
1. This
Protocol shall be subject to ratification by the signatory States.
2. Ratification
of this Protocol by any State which is not a Party to the Convention shall have
the effect of adherence to the Convention as amended by this Protocol.
3. The
instruments of ratification shall be deposited with the Government of the
People’s Republic of Poland.
Article XXII
1. As soon as thirty signatory States have deposited
their instruments of ratification of this Protocol, it shall come into force
between them on the ninetieth day after the deposit of the thirtieth instrument
of ratification. It shall come into force for each State ratifying thereafter
on the ninetieth day after the deposit of its instrument of ratification.
2. As
soon as this Protocol comes into force it shall be registered with the United
Nations by the Government of the People’s Republic of Poland.
Article XXIII
1. This
Protocol shall, after it has come into force, be open for adherence by any non‑signatory
State.
2. Adherence
to this Protocol by any State which is not a Party to the Convention shall have
the effect of adherence to the Convention as amended by this Protocol.
3. Adherence
shall be effected by the deposit of an instrument of adherence with the
Government of the People’s Republic of Poland and shall take effect on the
ninetieth day after the deposit.
Article XXIV
1. Any
Party to this Protocol may denounce the Protocol by notification addressed to
the Government of the People’s Republic of Poland.
2. Denunciation
shall take effect six months after the date of receipt by the Government of the
People’s Republic of Poland of the notification of denunciation.
3. As
between the Parties to this Protocol, denunciation by any of them of the
Convention in accordance with Article 39 thereof shall not be construed in any
way as a denunciation of the Convention as amended by this Protocol.
Article XXV
1. This
Protocol shall apply to all territories for the foreign relations of which a
State Party to this Protocol is responsible, with the exception of territories
in respect of which a declaration has been made in accordance with paragraph 2
of this Article.
2. Any
State may, at the time of deposit of its instrument of ratification or
adherence, declare that its acceptance of this Protocol does not apply to any
one or more of the territories for the foreign relations of which such State is
responsible.
3. Any
State may subsequently, by notification to the Government of the People’s
Republic of Poland, extend the application of this Protocol to any or all of
the territories regarding which it has made a declaration in accordance with
paragraph 2 of this Article. The notification shall take effect on the
ninetieth day after its receipt by that Government.
4. Any
State Party to this Protocol may denounce it, in accordance with the provisions
of Article XXIV, paragraph 1, separately for any or all of the territories for
the foreign relations of which such State is responsible.
Article XXVI
No
reservation may be made to this Protocol except that a State may at any time
declare by a notification addressed to the Government of the People’s Republic
of Poland that the Convention as amended by this Protocol shall not apply to
the carriage of persons, cargo and baggage for its military authorities on
aircraft, registered in that State, the whole capacity of which has been
reserved by or on behalf of such authorities.
Article XXVII
The
Government of the People’s Republic of Poland shall give immediate notice to
the Governments of all States signatories to the Convention or this Protocol,
all States Parties to the Convention or this Protocol, and all States Members
of the International Civil Aviation Organization or of the United Nations and
to the International Civil Aviation Organization:
(a) of any signature of this Protocol and the date thereof;
(b) of the deposit of any instrument of ratification or
adherence in respect of this Protocol and the date thereof;
(c) of the date on which this Protocol comes into force in
accordance with Article XXII, paragraph 1;
(d) of the receipt of any notification of denunciation and the
date thereof;
(e) of the receipt of any declaration or notification made
under Article XXV and the date thereof; and
(f) of the receipt of any notification made under Article XXVI
and the date thereof.
IN
WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly authorized,
have signed this Protocol.
DONE
at The Hague on the twenty‑eighth day of the month of September of the
year One Thousand Nine Hundred and Fifty‑five, in three authentic texts
in the English, French and Spanish languages. In the case of any inconsistency,
the text in the French language, in which language the Convention was drawn up,
shall prevail.
This
Protocol shall be deposited with the Government of the People’s Republic of
Poland with which, in accordance with Article XX, it shall remain open for
signature, and that Government shall send certified copies thereof to the
Governments of all States signatories to the Convention or this Protocol, all
States Parties to the Convention or this Protocol, and all States Members of
the International Civil Aviation Organization or of the United Nations, and to
the International Civil Aviation Organization.
Schedule 3—Convention
Section 9(2A)
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.
THE
STATES SIGNATORY TO THE PRESENT CONVENTION
NOTING
that the Warsaw Convention does not contain particular rules relating to
international carriage by air performed by a person who is not a party to the
agreement for carriage
CONSIDERING
that it is therefore desirable to formulate rules to apply in such
circumstances
HAVE
AGREED AS FOLLOWS:
Article I
In
this Convention:
a) “Warsaw
Convention” means the Convention for the Unification of Certain Rules Relating
to International Carriage by Air signed at Warsaw on 12 October 1929, or
the Warsaw Convention as amended at The Hague, 1955, according to whether the
carriage under the agreement referred to in paragraph (b) is governed by
the one or by the other;
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 I, paragraph (b), is governed by the
Warsaw Convention, both the contracting carrier and the actual carrier shall,
except as otherwise provided in this Convention, 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 this Convention 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 this Convention, 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 this Convention must be
brought, at the option of the plaintiff, 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 this Convention or to fix a lower limit than that
which is applicable according to this Convention 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 this Convention.
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 this Convention, whether by deciding the law to
be applied, or by altering the rules as to jurisdiction, shall be null and
void. Nevertheless, for the carriage of cargo arbitration clauses are allowed,
subject to this Convention, if the arbitration is to take place in one of the
jurisdictions referred to in Article VIII.
Article
X
Except
as provided in Article VII, nothing in this Convention shall affect the rights
and obligations of the two carriers between themselves.
Article XI
Until
the date on which this Convention comes into force in accordance with the
provisions of Article XIII, it shall remain open for signature on behalf of any
State which at that date is a Member of the United Nations or of any of the
Specialized Agencies.
Article
XII
1. This
Convention shall be subject to ratification by the signatory States.
2. The
instruments of ratification shall be deposited with the Government of the
United States of Mexico.
Article XIII
1. As
soon as five of the signatory States have deposited their instruments of
ratification of this Convention, it shall come into force between them on the
ninetieth day after the date of the deposit of the fifth instrument of
ratification. It shall come into force for each State ratifying thereafter on
the ninetieth day after the deposit of its instrument of ratification.
2. As
soon as this Convention comes into force, it shall be registered with the
United Nations and the International Civil Aviation Organization by the
Government of the United States of Mexico.
Article XIV
1. This
Convention shall, after it has come into force, be open for accession by any
State Member of the United Nations or of any of the Specialized Agencies.
2. The
accession of a State shall be effected by the deposit of an instrument of
accession with the Government of the United States of Mexico and shall take
effect as from the ninetieth day after the date of such deposit.
Article
XV
1. Any
Contracting State may denounce this Convention by notification addressed to the
Government of the United States of Mexico.
2. Denunciation
shall take effect six months after the date of receipt by the Government of the
United States of Mexico of the notification of denunciation.
Article XVI
1. Any
Contracting State may at the time of its ratification of or accession to this
Convention or at any time thereafter declare by notification to the Government
of the United States of Mexico that the Convention shall extend to any of the
territories for whose international relations it is responsible.
2. The
Convention shall, ninety days after the date of the receipt of such
notification by the Government of the United States of Mexico, extend to the
territories named therein.
3. Any
Contracting State may denounce this Convention, in accordance with the
provisions of Article XV, separately for any or all of the territories for the
international relations of which such State is responsible.
Article
XVII
No
reservation may be made to this Convention.
Article XVIII
The
Government of the United States of Mexico shall give notice to the
International Civil Aviation Organization and to all States Members of the
United Nations or of any of the Specialized Agencies:
a) of any signature of this Convention and the date
thereof;
b) of the deposit of any instrument of ratification or
accession and the date thereof;
c) of the date on which this Convention comes into force
in accordance with Article XIII, paragraph 1;
d) of the receipt of any notification of denunciation
and the date thereof;
e) of the receipt of any declaration or notification
made under Article XVI and the date thereof.
IN
WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly authorized,
have signed this Convention.
DONE
at Guadalajara on the eighteenth day of September One Thousand Nine Hundred and
Sixty‑one in three authentic texts drawn up in the English, French and
Spanish languages. In case of any inconsistency, the text in the French
language, in which language the Warsaw Convention of 12 October 1929 was drawn up, shall prevail. The Government of the United States of Mexico will
establish an official translation of the text of the Convention in the Russian
language.
This
Convention shall be deposited with the Government of the United States of
Mexico with which, in accordance with Article XI, it shall remain open for
signature, and that Government shall send certified copies thereof to the
International Civil Aviation Organization and to all States Members of the
United Nations or of any Specialized Agency.
[Here
follow the signatures of the Plenipotentiaries of the States on behalf of which
the Convention has been signed.]
Schedule 4—The Montreal No. 3
Convention
Section 8
(“WARSAW CONVENTION AS AMENDED AT THE HAGUE, 1955, AT GUATEMALA
CITY, 1971, AND BY THE ADDITIONAL PROTOCOL NO. 3 OF MONTREAL, 1975”)
Article V of
the Montreal Protocol No. 3, Article XVII of the Guatemala City Protocol
and Article XIX of the Hague Protocol together provide that, as between parties
to the Montreal Protocol No. 3, that Protocol, the Guatemala City
Protocol, the Hague Protocol and the Warsaw Convention are to be read and
interpreted together as one single instrument.
The text in
this Schedule contains:
(a) the operative provisions of the Warsaw Convention as
modified by Chapter I of the Hague Protocol, Chapter I of the Guatemala City
Protocol and Chapter I of the Montreal Protocol No. 3; and
(b) the remaining provisions of the Hague Protocol, the Guatemala
City Protocol and the Montreal Protocol No. 3.
OPERATIVE
PROVISIONS OF THE WARSAW CONVENTION, AS MODIFIED BY THE
HAGUE, GUATEMALA CITY AND MONTREAL NO. 3
PROTOCOLS
Chapter I—Scope—Definitions
Article 1
1. This
Convention applies to all international carriage of persons, baggage or cargo
performed by aircraft for reward. It applies equally to gratuitous carriage by
aircraft performed by an air transport undertaking.
2. For
the purposes of this Convention, the expression international carriage
means any carriage in which, according to the agreement between the parties,
the place of departure and the place of destination, whether or not there be a
break in the carriage or a transhipment, are situated either within the
territories of two High Contracting Parties or within the territory of a single
High Contracting Party if there is an agreed stopping place within the
territory of another State, even if that State is not a High Contracting Party.
Carriage between two points within the territory of a single High Contracting
Party without an agreed stopping place within the territory of another State is
not international carriage for the purposes of this Convention.
3. Carriage
to be performed by several successive air 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, and it does not lose its
international character merely because one contract or a series of contracts is
to be performed entirely within the territory of the same State.
Article 2
1. The
Convention applies to carriage performed by the State or by legally constituted
public bodies provided it falls within the conditions laid down in Article 1.
2. This
Convention shall not apply to carriage of mail and postal packages.
Chapter II—Documents of Carriage
Section 1—Passenger
Ticket
Article 3
1. In
respect of the 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 High Contracting 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 would preserve a record of the information indicated in a)
and b) of the foregoing paragraph may be substituted for the delivery of the
document referred to in that paragraph.
3. Non‑compliance
with the provisions of the foregoing paragraphs shall not affect the existence
or the validity of the contract of carriage, which shall, none the less, be
subject to the rules of this Convention including those relating to limitation
of liability.
Section 2—Baggage
Check
Article 4
1. In
respect of the carriage of checked baggage, a baggage check shall be delivered,
which, unless combined with or incorporated in a document of carriage which
complies with the provisions of Article 3, paragraph 1, shall contain:
(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 High Contracting 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 would preserve a record of the information indicated in a)
and b) of the foregoing paragraph may be substituted for the delivery of the
baggage check referred to in that paragraph.
3. Non‑compliance
with the provisions of the foregoing paragraphs shall not affect the existence
or the validity of the contract of carriage, which shall, none the less, be
subject to the rules of this Convention including those relating to limitation
of 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 Convention.
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 prior to the loading of the cargo on board the aircraft.
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
air waybills when there is more than one package.
Article 8
The
air waybill shall contain:
(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 High Contracting Party, one or more agreed stopping
places being within the territory of another State, an indication of at least
one such stopping place;
(c) a notice to the consignor to the effect that, if the
carriage involves an ultimate destination or stop in a country other than the
country of departure, the Warsaw Convention may be applicable and that the
Convention governs and in most cases limits the liability of carriers in
respect of loss of or damage to cargo.
Article 9
If,
with the consent of the carrier, cargo is loaded on board the aircraft without
an air waybill having been made out, or if the air waybill does not include the
notice required by Article 8, paragraph (c), the carrier shall not be
entitled to avail himself of the provisions of Article 22, paragraph 2.
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 shall indemnify the carrier against all damage suffered by him, 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.
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 air 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.
3. Nothing
in this Convention prevents the issue of a negotiable 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 inquire into the correctness or sufficiency
of such information or documents.
Chapter III—Liability of the Carrier
Article 17
1. The
carrier is liable for damage sustained in case of death or personal injury of a
passenger upon condition only that the event 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. However, the carrier is not liable if the death or
injury resulted solely from the state of health of the passenger.
2. The
carrier is liable for damage sustained in case of destruction or loss of, or of
damage to, baggage upon condition only that the event which caused the
destruction, loss or damage took place on board the aircraft or in the course
of any of the operations of embarking or disembarking or during any period
within which the baggage was in charge of the carrier. However, the carrier is
not liable if the damage resulted solely from the inherent defect, quality or
vice of the baggage.
3. Unless
otherwise specified, in this Convention the term “baggage” means both checked
baggage and objects carried by the passenger.
Article 18
1. The
carrier is liable for damage sustained in the event of the destruction or loss
of, or of damage to, 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 cargo is in charge of the carrier, whether in an
airport or on board an aircraft, or, in the case of a landing outside an
airport, 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 trans‑shipment, 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. In
the carriage of passengers and baggage the carrier shall not be liable for
damage occasioned by delay if he proves that he and his servants and agents
have taken all necessary measures to avoid the damage or that it was impossible
for them to take such measures.
2. In
the carriage of cargo the carrier shall not be liable for damage resulting from
destruction, loss, damage or delay if he proves that he and his servants and agents
have taken all necessary measures to avoid the damage or that it was impossible
for them to take such measures.
Article 21
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, the carrier shall be wholly or partly exonerated from his
liability to such person to the extent that such negligence or wrongful act or
omission caused or contributed to the damage. When by reason of the 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 his
liability to the extent that he proves that the damage was caused or
contributed to by the negligence or other wrongful act or omission of that
passenger.
Article 22
1. a) In
the carriage of persons the liability of the carrier is limited to the sum of
100 000 Special Drawing Rights for the aggregate of the claims, however
founded, in respect of damage suffered as a result of the death or personal
injury of each passenger. 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 100 000 Special
Drawing Rights.
b) In
the case of delay in the carriage of persons the liability of the carrier for
each passenger is limited to 4 150 Special Drawing Rights.
c) 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.
2. a) In
the carriage 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.
b) In
the case of 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 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, the total
weight of such package or packages shall also be taken into consideration in
determining the limit of liability.
3. a) The
courts of the High Contracting Parties which are not authorized under their law
to award the costs of the action, including lawyers’ fees, shall, in actions to
which this Convention applies, have the power to award, in their discretion, to
the claimant the whole or part of the costs of the action, including lawyers’
fees which the court considers reasonable.
b) The
costs of the action including lawyers’ fees shall be awarded in accordance with
subparagraph a) only if the claimant gives a written notice to the carrier of
the amount claimed including the particulars of the calculation of that amount
and the carrier does not make, within a period of six months after his receipt
of such notice, a written offer of settlement in an amount at least equal to
the compensation awarded within the applicable limit. This period will be extended
until the time of commencement of the action if that is later.
c) The
costs of the action including lawyers’ fees shall not be taken into account in
applying the limits under this Article.
4. The
sums mentioned in terms of Special Drawing Right in this Article and Article 42
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 judgment.
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 judgment, 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 and 2 a)
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 1 500 000 monetary units
per passenger with respect to paragraph 1 a) of Article 22; 62 500 monetary
units per passenger with respect to paragraph 1 b) of Article 22; 15 000
monetary units per passenger with respect to paragraph 1 c) of Article 22; and
250 monetary units per kilogramme with respect to paragraph 2 a) of Article 22.
A State applying the provisions of this paragraph may also declare that the sum
referred to in paragraphs 2 and 3 of Article 42 shall be the sum of 187 500
monetary units. 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
1. 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.
2. Paragraph
1 of this Article shall not apply to provisions governing loss or damage
resulting from the inherent defect, quality or vice of the cargo carried.
Article 24
1. In
the carriage of cargo, any action for damages, however founded, can only be
brought subject to the conditions and limits set out in this Convention.
2. In
the carriage of passengers and baggage 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 limits of liability 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. Such limits of
liability constitute maximum limits and may not be exceeded whatever the
circumstances which gave rise to the liability.
Article 25
The
limit of liability specified in paragraph 2 of Article 22 shall not apply if it
is proved that the damage resulted from an act or omission of the carrier, his
servants or agents, done with intent to cause damage or recklessly and with
knowledge that damage would probably result; provided that, in the case of such
act or omission of a servant or agent, it is also proved that he was acting
within the scope of his employment.
Article 25A
1. If
an action is brought against a servant or agent of the carrier arising out of
damage to which the Convention relates, such servant or agent, if he proves
that he acted within the scope of his employment, shall be entitled to avail
himself of the limits of liability which that carrier himself is entitled to
invoke under this Convention.
2. The
aggregate of the amounts recoverable from the carrier, his servants and agents,
in that case, shall not exceed the said limits.
3. The
provisions of paragraphs 1 and 2 of this Article shall not apply to the
carriage of cargo if it is proved that the damage resulted from an act or
omission of the servant or agent done with intent to cause damage or recklessly
and with knowledge that damage would probably result.
Article 26
1. Receipt
by the person entitled to delivery of baggage or cargo without complaint is prima
facie evidence that the same has been delivered in good condition and in
accordance with the document of carriage.
2. In
the case of damage, the person entitled to delivery must complain to the
carrier forthwith after the discovery of the damage, and, at the latest, within
seven days from the date of receipt in the case of baggage and fourteen days
from the date of receipt in the case of cargo. In the case of delay the
complaint must be made at the latest within twenty‑one days from the date
on which the baggage or cargo have been placed at his disposal.
3. Every
complaint must be made in writing upon the document of carriage or by separate
notice in writing despatched within the times aforesaid.
4. Failing
complaint within the times aforesaid, no action shall lie against the carrier,
save in the case of fraud on his part.
Article 27
In
the case of the death of the person liable, an action for damages lies in
accordance with the terms of this Convention against those legally representing
his estate.
Article 28
1. An
action for damages must be brought, at the option of the plaintiff, in the
territory of one of the High Contracting Parties, either before the Court
having jurisdiction where the carrier is ordinarily resident, or has his
principal place of business, or has an establishment by which the contract has
been made or before the Court having jurisdiction at the place of destination.
2. In
respect of damage resulting from the death, injury or delay of a passenger or
the destruction, loss, damage or delay of baggage, the action may be brought
before one of the Courts mentioned in paragraph 1 of this Article, or in the
territory of one of the High Contracting Parties, before the Court within the
jurisdiction of which the carrier has an establishment if the passenger has his
domicile or permanent residence in the territory of the same High Contracting
Party.
3. Questions
of procedure shall be governed by the law of the Court seised of the case.
Article 29
1. The
right to damages shall be extinguished if an action is not brought within two
years, reckoned from the date of arrival at the destination, or from the date
on which the aircraft ought to have arrived, or from the date on which the
carriage stopped.
2. The
method of calculating the period of limitation shall be determined by the law
of the Court seised of the case.
Article 30
1. In
the case of carriage to be performed by various successive carriers and falling
within the definition set out in the third paragraph of Article 1, each carrier
who accepts passengers, baggage or cargo is subjected to the rules set out in
this Convention, and is deemed to be one of the contracting parties to the
contract of carriage in so far as the contract deals with that part of the
carriage which is performed under his supervision.
2. In
the case of carriage of this nature, the passenger or his representative can
take action only against the carrier who performed the carriage during which
the accident or the delay occurred, save in the case where, by express
agreement, the first carrier has assumed liability for the whole journey.
3. As
regards baggage or cargo, the passenger or consignor will have a right of
action against the first carrier, and 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, or damage or delay took place. These
carriers will be jointly and severally liable to the passenger or to the
consignor or consignee.
Article 30A
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—Provisions Relating to Combined
Carriage
Article 31
1. In
the case of combined carriage performed partly by air and partly by any other
mode of carriage, the provisions of this Convention apply only to the carriage
by air, provided that the carriage by air falls within the terms of Article 1.
2. Nothing
in this Convention shall prevent the parties in the case of combined carriage
from inserting in the document of air 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—General and Final Provisions
Article 32
Any
clause contained in the contract and all special agreements entered into before
the damage occurred by which the parties purport to infringe the rules laid
down by this Convention, whether by deciding the law to be applied, or by
altering the rules as to jurisdiction, shall be null and void. Nevertheless for
the carriage of cargo arbitration clauses are allowed, subject to this
Convention, if the arbitration is to take place within one of the jurisdictions
referred to in the first paragraph of Article 28.
Article 33
Nothing
contained in this Convention shall prevent the carrier either from refusing to
enter into any contract of carriage, or from making regulations which do not
conflict with the provisions of this Convention.
Article 34
The
provisions of Articles 3 to 9 inclusive relating to documents of carriage shall
not apply in the case of carriage performed in extraordinary circumstances
outside the normal scope of an air carrier’s business.
Article 35
The
expression “days” when used in this Convention means current days not working
days.
Article 35A
No
provision contained in this Convention shall prevent a State from establishing
and operating within its territory a system to supplement the compensation
payable to claimants under the Convention in respect of death, or personal
injury, of passengers. Such a system shall fulfil the following conditions:
(a) it shall not in any circumstances impose upon the carrier,
his servants or agents, any liability in addition to that provided under this
Convention;
(b) it shall not impose upon the carrier any financial or
administrative burden other than collecting in that State contributions from
passengers if required so to do;
(c) it shall not give rise to any discrimination between
carriers with regard to the passengers concerned and the benefits available to
the said passengers under the system shall be extended to them regardless of
the carrier whose services they have used;
(d) if a passenger has contributed to the system, any person
suffering damage as a consequence of death or personal injury of such passenger
shall be entitled to the benefits of the system.
Article 36
The
Convention is drawn up in French in a single copy which shall remain deposited
in the archives of the Ministry for Foreign Affairs of Poland and of which one
duly certified copy shall be sent by the Polish Government to the Government of
each of the High Contracting Parties.
Article 40A
1. In
Article 37, paragraph 2 and Article 40, paragraph 1, the expression High Contracting
Party shall mean State. In all other cases, the expression High Contracting
Party shall mean a State whose ratification of or adherence to the
Convention has become effective and whose denunciation thereof has not become
effective.
2. For
the purposes of the Convention the word territory means not only the
metropolitan territory of a State but also all other territories for the
foreign relations of which that State is responsible.
Article 41
Any
High Contracting Party shall be entitled not earlier than two years after the
coming into force of this Convention to call for the assembling of a new
international Conference in order to consider any improvements which may be made
in this Convention. To this end he will communicate with the Government of the French
Republic which will take the necessary measures to make preparations for such
Conference.
Article 42
1. Without
prejudice to the provisions of Article 41, Conferences of the Parties to the
Protocol done at Guatemala City on the eighth March 1971 shall be convened
during the fifth and tenth years respectively after the date of entry into
force of the said Protocol for the purpose of reviewing the limit established in
Article 22, paragraph 1a) of the Convention as amended by that Protocol.
2. At
each of the Conferences mentioned in paragraph 1 of this Article the limit of
liability in Article 22, paragraph 1a) in force at the respective dates of
these Conferences shall not be increased by an amount exceeding 12 500 Special
Drawing Rights.
3. Subject
to paragraph 2 of this Article, unless before the thirty‑first December
of the fifth and tenth year after the date of entry into force of the Protocol
referred to in paragraph 1 of this Article the aforesaid Conferences decide
otherwise by a two‑thirds majority vote of the Parties present and
voting, the limit of liability in Article 22, paragraph 1a) in force at the
respective dates of these Conferences shall on those dates be increased by 12
500 Special Drawing Rights.
4. The
applicable limit shall be that which, in accordance with the preceding
paragraphs, is in effect on the date of the event which caused the death or
personal injury of the passenger.
Additional Protocol
(with reference to Article 2)
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.
REMAINING
OPERATIVE PROVISIONS OF THE HAGUE PROTOCOL
Article XIX
As
between the Parties to this Protocol, the Convention and the Protocol shall be
read and interpreted together as one single instrument and shall be known as
the Warsaw Convention as amended at The Hague, 1955.
Article XXVI
No
reservation may be made to this Protocol except that a State may at any time
declare by a notification addressed to the Government of the People’s Republic
of Poland that the Convention as amended by this Protocol shall not apply to
the carriage of persons, cargo and baggage for its military authorities on aircraft,
registered in that State, the whole capacity of which has been reserved by or
on behalf of such authorities.
REMAINING
OPERATIVE PROVISIONS OF THE GUATEMALA CITY PROTOCOL
Article XVII
As
between the Parties to this Protocol, the Warsaw Convention as amended at The
Hague in 1955 and this Protocol shall be read and interpreted together as one
single instrument and shall be known as the Warsaw Convention as amended at
The Hague, 1955, and at Guatemala City, 1971.
Article XXIII
1. Only
the following reservations may be made to this Protocol:—
(a) a State whose courts are not authorized under its law to
award the costs of the action including lawyers’ fees may at any time by a
notification addressed to the International Civil Aviation Organization declare
that Article 22, paragraph 3 (a) shall not apply to its courts; and
(b) a State may at any time declare by a notification
addressed to the International Civil Aviation Organization that the Warsaw
Convention as amended at The Hague 1955, and at Guatemala City, 1971 shall
not apply to the carriage of persons, baggage and cargo for its military
authorities on aircraft, registered in that State, the whole capacity of which
has been reserved by or on behalf of such authorities.
2. Any
State having made a reservation in accordance with the preceding paragraph may
at any time withdraw such reservation by notification to the International
Civil Aviation Organization.
Article XXV
As
between the Parties to this Protocol which are also Parties to 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 referred to as the “Guadalajara Convention”) any reference to the
“Warsaw Convention” contained in the Guadalajara Convention shall include
reference to the Warsaw Convention as amended at The Hague, 1955, and at
Guatemala City, 1971, in cases where the carriage under the agreement
referred to in Article 1, paragraph (b) of the Guadalajara Convention is
governed by this Protocol.
REMAINING OPERATIVE PROVISIONS OF THE MONTREAL
NO. 3 PROTOCOL
Additional Protocol No. 3
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 Protocols Done at
The Hague on 28 September 1955, and at Guatemala City on 8 March 1971
THE
GOVERNMENTS UNDERSIGNED
CONSIDERING
that it is desirable 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 Protocols done at The Hague on 28 September 1955,
and at Guatemala City on 8 March 1971,
HAVE
AGREED as follows:
Chapter I—Amendments to the Convention
[omitted]
Chapter II—Scope of Application of the
Convention as Amended
Article IV
The
Warsaw Convention as amended at the Hague in 1955, and at Guatemala City in
1971 and by this Protocol shall apply to international carriage as defined in
Article 1 of the Convention, provided that the places of departure and
destination referred to in that Article are situated either in the territories
of two parties to this Protocol or within the territory of a single Party to
this Protocol with an agreed stopping place in the territory of another State.
Chapter
III—Final Clauses
Article V
As
between the Parties to this Protocol, the Warsaw Convention as amended at The
Hague in 1955 and at Guatemala City in 1971, and this Protocol shall be read
and interpreted together as one single instrument and shall be known as the Warsaw
Convention as amended at The Hague, 1955, at Guatemala City, 1971, and by the
Additional Protocol No. 3 of Montreal, 1975.
Article VI
Until
the date on which this Protocol comes into force in accordance with the
provisions of Article VIII, it shall remain open for signature by any State.
Article VII
1. This
Protocol shall be subject to ratification by the signatory States.
2. Ratification
of this Protocol by any State which is not a Party to the Warsaw Convention or
by any State which is not a Party to the Warsaw Convention as amended at The
Hague, 1955, or by any State which is not a Party to the Warsaw Convention as
amended at The Hague, 1955, and at Guatemala City, 1971, shall have the effect
of accession to the Warsaw Convention as amended at The Hague, 1955, at
Guatemala City, 1971, and by the Additional Protocol No. 3 of Montreal,
1975.
3. The
instruments of ratification shall be deposited with the Government of the
Polish People’s Republic.
Article VIII
1. As
soon as thirty signatory States have deposited their instruments of
ratification of this Protocol, it shall come into force between them on the
ninetieth day after the deposit of the thirtieth instrument of ratification. It
shall come into force for each State ratifying thereafter on the ninetieth day
after the deposit of its instrument of ratification.
2. As
soon as this Protocol comes into force it shall be registered with the United
Nations by the Government of the Polish People’s Republic.
Article IX
1. This
Protocol, after it has come into force, shall be open for accession by any non‑signatory
State.
2. Accession
to this Protocol by any State which is not a Party to the Warsaw Convention or
by any State which is not a Party to the Warsaw Convention as amended at The
Hague, 1955, or by any State not a Party to the Warsaw Convention as amended at
The Hague, 1955, and at Guatemala City, 1971, shall have the effect of accession
to the Warsaw Convention as amended at The Hague, 1955, at Guatemala City,
1971, and by the Additional Protocol No. 3 of Montreal, 1975.
3. Accession
shall be effected by the deposit of an instrument of accession with the
Government of the Polish People’s Republic and shall take effect on the
ninetieth day after the deposit.
Article X
1. Any
Party to this Protocol may denounce the Protocol by notification addressed to
the Government of the Polish People’s Republic.
2. Denunciation
shall take effect six months after the date of receipt by the Government of the
Polish People’s Republic of the notification of denunciation.
3. As
between the Parties to this Protocol, denunciation by any of them of the Warsaw
Convention in accordance with Article 39 thereof or of the Hague Protocol in
accordance with Article XXIV thereof or of the Guatemala City Protocol in
accordance with Article XXII thereof shall not be construed in any way as a
denunciation of the Warsaw Convention as amended at The Hague, 1955, at
Guatemala City, 1971, and by the Additional Protocol No. 3 of Montreal,
1975.
Article XI
1. Only
the following reservations may be made to this Protocol:
a) any State whose courts are not authorized under its law to
award the costs of the action including lawyers’ fees may at any time by a
notification addressed to the Government of the Polish People’s Republic
declare that Article 22, paragraph 3 a) shall not apply to its courts;
b) any State may at any time declare by a notification
addressed to the Government of the Polish People’s Republic that the Warsaw
Convention as amended at The Hague, 1955, at Guatemala City, 1971, and by the
Additional Protocol No. 3 of Montreal, 1975, shall not apply to the
carriage of persons, baggage and cargo for its military authorities on
aircraft, registered in that State, the whole capacity of which has been
reserved by or on behalf of such authorities; and
c) any State may declare at the time of ratification of or
accession to the Montreal Protocol No. 4 of 1975, or at any time
thereafter, that it is not bound by the provisions of the Warsaw Convention
as amended at The Hague, 1955, at Guatemala City, 1971, and by the Additional
Protocol No. 3 of Montreal, 1975, in so far as they relate to the
carriage of cargo, mail and postal packages. Such declaration shall have effect
ninety days after the date of receipt by the Government of the Polish People’s
Republic of the declaration.
2. Any
State having made a reservation in accordance with the preceding paragraph may
at any time withdraw such reservation by notification to the Government of the
Polish People’s Republic.
Article XII
The
Government of the Polish People’s Republic shall promptly inform all States
Parties to the Warsaw Convention or to that Convention as amended, all
signatory or acceding States to the present Protocol, as well as the
International Civil Aviation Organization, of the date of each signature, the
date of deposit of each instrument of ratification or accession, the date of
coming into force of this Protocol, and other relevant information.
Article XIII
As
between the Parties to this Protocol which are also Parties to 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 referred to as the “Guadalajara Convention”) any reference to the
“Warsaw Convention” contained in the Guadalajara Convention shall include
reference to the Warsaw Convention as amended at The Hague, 1955, at
Guatemala City, 1971, and by the Additional Protocol No. 3 of Montreal,
1975, in cases where the carriage under the agreement referred to in
Article 1, paragraph b) of the Guadalajara Convention is governed by this
Protocol.
Article XIV
This
Protocol shall remain open for signature until 1 January 1976 at the
Headquarters of the International Civil Aviation Organization and thereafter
until it comes into force in accordance with Article VIII at the Ministry for
Foreign Affairs of the Polish People’s Republic. The International Civil
Aviation Organization shall promptly inform the Government of the Polish
People’s Republic of any signature and the date thereof during the time that
the Protocol shall be open for signature at the Headquarters of the
International Civil Aviation Organization.
IN
WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly authorized,
have signed this Protocol.
DONE
AT MONTREAL on the twenty‑fifth day of September of the year One Thousand
Nine Hundred and Seventy‑five in four authentic texts in the English,
French, Russian and Spanish languages. In the case of any inconsistency, the
text in the French language, in which language the Warsaw Convention of 12 October 1929 was drawn up, shall prevail.
Schedule 5—The Montreal No. 4
Convention
Section 8
(“WARSAW
CONVENTION AS AMENDED AT THE HAGUE, 1955, AND BY PROTOCOL NO. 4 OF MONTREAL,
1975”)
Article
XV of the Montreal Protocol No. 4 and Article XIX of the Hague Protocol together
provide that, as between parties to the Montreal Protocol No. 4, that
Protocol, the Hague Protocol and the Warsaw Convention are to be read and
interpreted together as one single instrument.
The
text in this Schedule contains:
(a) the operative provisions of the Warsaw Convention as
modified by Chapter I of the Hague Protocol and Chapter I of the Montreal
Protocol No. 4; and
(b) the remaining provisions of the Hague Protocol and the Montreal
Protocol No. 4.
OPERATIVE
PROVISIONS OF THE WARSAW CONVENTION, AS MODIFIED BY THE
HAGUE AND MONTREAL NO. 4 PROTOCOLS
Chapter I—Scope—Definitions
Article 1
1. This
Convention applies to all international carriage of persons, baggage or cargo
performed by aircraft for reward. It applies equally to gratuitous carriage by
aircraft performed by an air transport undertaking.
2. For
the purposes of this Convention, the expression international carriage
means any carriage in which, according to the agreement between the parties,
the place of departure and the place of destination, whether or not there be a
break in the carriage or a transhipment, are situated either within the
territories of two High Contracting Parties or within the territory of a single
High Contracting Party if there is an agreed stopping place within the
territory of another State, even if that State is not a High Contracting Party.
Carriage between two points within the territory of a single High Contracting
Party without an agreed stopping place within the territory of another State is
not international carriage for the purpose of this Convention.
3. Carriage
to be performed by several successive air 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, and it does not lose its
international character merely because one contract or a series of contracts is
to be performed entirely within the territory of the same State.
Article 2
1. The
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—Documents of Carriage
SECTION 1—PASSENGER TICKET
Article 3
1. In
respect of the carriage of passengers a ticket 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 High Contracting Party, one or more agreed stopping
places being within the territory of another State, an indication of at least
one such stopping place;
(c) a notice to the effect that, if the passenger’s journey
involves an ultimate destination or stop in a country other than the country of
departure, the Warsaw Convention may be applicable and that the Convention
governs and in most cases limits the liability of carriers for death or
personal injury and in respect of loss of or damage to baggage.
2. The
passenger ticket shall constitute prima facie evidence of the conclusion
and conditions of the contract of carriage. 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 Convention. Nevertheless, if, with the consent of the carrier, the
passenger embarks without a passenger ticket having been delivered, or if the
ticket does not include the notice required by paragraph 1 (c) of this Article,
the carrier shall not be entitled to avail himself of the provisions of Article
22.
SECTION 2—BAGGAGE
CHECK
Article 4
1. In
respect of the carriage of registered baggage, a baggage check shall be
delivered, which, unless combined with or incorporated in a passenger ticket
which complies with the provisions of Article 3, paragraph 1, shall contain:
(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 High Contracting Party, one or more agreed stopping
places being within the territory of another State, an indication of at least one
such stopping place;
(c) a notice to the effect that; if the carriage involves an
ultimate destination or stop in a country other than the country of departure,
the Warsaw Convention may be applicable and that the Convention governs and in
most cases limits the liability of carriers in respect of loss of or damage to
baggage.
2. The
baggage check shall constitute prima facie evidence of the registration
of the baggage and of the conditions of the contract of carriage. 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 Convention. Nevertheless, if the carrier takes charge of the
baggage without a baggage check having been delivered or if the baggage check
(unless combined with or incorporated in the passenger ticket which complies
with the provisions of Article 3, paragraph 1 (c)) does not include the notice
required by paragraph 1 (c) of this Article, he shall not be entitled to avail
himslf of the provisions of Article 22, paragraph 2.
SECTION 3—DOCUMENTATION
RELATING TO CARGO
Article 5
1. In
respect of the carriage of cargo an air waybill shall be delivered.
2. Any
other means which would preserve a record of the carriage to be performed may,
with the consent of the consignor, 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 receipt for the cargo permitting
identification of the consignment and access to the information contained in
the record preserved by such other means.
3. The
impossibility of using, at points of transit and destination, the other means
which would preserve the record of the carriage referred to in paragraph 2 of
this Article does not entitle the carrier to refuse to accept the cargo for
carriage.
Article 6
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 and handed by him 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, he
shall be deemed, subject to proof to the contrary, to have done so on behalf of
the consignor.
Article 7
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;
(b) the consignor has the right to require the carrier to
deliver separate receipts when the other means referred to in paragraph 2 of
Article 5 are used.
Article 8
The
air waybill and the receipt for the cargo shall contain:
(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 High Contracting 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 9
Non‑compliance
with the provisions of Articles 5 to 8 shall not affect the existence or the
validity of the contract of carriage, which shall, none the less, be subject to
the rules of this Convention including those relating to limitation of liability.
Article 10
1. The
consignor is responsible for the correctness of the particulars and statements
relating to the cargo inserted by him or on his behalf in the air waybill or
furnished by him or on his behalf to the carrier for insertion in the receipt
for the cargo or for insertion in the record preserved by the other means
referred to in paragraph 2 of Article 5.
2. The
consignor shall indemnify the carrier against all damage suffered by him, 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 his behalf.
3. Subject
to the provisions of paragraphs 1 and 2 of this Article, the carrier shall
indemnify the consignor against all damage suffered by him, 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 his behalf in the receipt for the cargo or in the record
preserved by the other means referred to in paragraph 2 of Article 5.
Article 11
1. The
air waybill or the receipt for the cargo 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 receipt for the cargo 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 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 orginally designated, or by requiring it to be returned to the
airport 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 or the receipt
for the cargo 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 or the receipt for the cargo.
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 if he cannot be communicated with, the
consignor resumes his right of disposition.
Article 13
1. Except
when the consignor has exercised his 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 him, 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
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 of carriage.
Article 15
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 provision in
the air waybill or the receipt for the cargo.
Article 16
1. The
consignor must furnish such information and 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,
his servants or agents.
2. The
carrier is under no obligation to inquire into the correctness or sufficiency
of such information or documents.
Chapter III—Liability of the Carrier
Article 17
The
carrier is liable for damage sustained in the event of the death or wounding of
a passenger or any other bodily injury suffered by a passenger, if the accident
which caused the damage so sustained took place on board the aircraft or in the
course of any of the operations of embarking or disembarking.
Article 18
1. The
carrier is liable for damages sustained in the event of the destruction or loss
of, or damage to, any registered baggage, if the occurrence which caused the
damage so sustained took place during the carriage by air.
2. 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 occurrence which caused
the damage so sustained took place during the carriage by air.
3. However,
the carrier is not liable if he proves that the destruction, loss of, or damage
to, the cargo resulted solely 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 his servants or agents;
c) an act of war or an armed conflict;
d) an act of public authority carried out in connexion with
the entry, exit or transit of the cargo.
4. The
carriage by air within the meaning of the preceding paragraphs of this Article
comprises the period during which the baggage or cargo is in the charge of the
carrier, whether in an airport or on board an aircraft, or, in the case of a
landing outside an airport, in any place whatsoever.
5. The
period of the carriage by air does not extend to any carriage by land, by sea
or by river 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 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
In
the carriage of passengers and baggage, and in the case of damage occasioned by
delay in the carriage of cargo, the carrier shall not be liable if he proves
that he and his servants and agents have taken all necessary measures to avoid
the damage or that it was impossible for them to take such measures.
Article 21
1. In
the carriage of passengers and baggage, if the carrier proves that the damage
was caused by or contributed to by the negligence of the person suffering the
damage the Court may, in accordance with the provisions of its own law, exonerate
the carrier wholly or partly from his liability.
2. In
the carriage of cargo, if the carrier proves that the damage was caused by or
contributed to by the negligence or other wrongful act or omission of the
person claiming compensation, or the person from whom he derives his rights,
the carrier shall be wholly or partly exonerated from his liability to the
claimant to the extent that such negligence or wrongful act or omission caused
or contributed to the damage.
Article 22
1. In
the carriage of persons the liability of the carrier for each passenger is
limited to the sum of two hundred and fifty thousand francs. Where, in
accordance with the law of the court seised of the case, damages may be awarded
in the form of periodical payments, the equivalent capital value of the said
payments shall not exceed two hundred and fifty thousand francs. Nevertheless,
by special contract, the carrier and the passenger may agree to a higher limit
of liability.
2. (a) In
the carriage of registered baggage, the liability of the carrier is limited to
a sum of two hundred and fifty francs per kilogramme, unless the passenger or
consignor has made, at the time when the package was handed over to the
carrier, a special declaration of interest in delivery at destination and has
paid a supplementary sum if the case so requires. In that case the carrier will
be liable to pay a sum not exceeding the declared sum, unless he proves that
the sum is greater than the passenger’s or consignor’s actual interest in
delivery at destination.
(b) In
the carriage 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.
(c) In
the case of loss, damage or delay of part of registered baggage or cargo, or of
any object contained therein, the weight to be taken into consideration in
determining the amount to which the carrier’s liability is limited shall be
only the total weight of the package or packages concerned. Nevertheless, when
the loss, damage or delay of a part of the registered baggage or cargo, or of
an object contained therein, affects the value of other packages covered by the
same baggage check or the same air waybill, the total weight of such package or
packages shall also be taken into consideration in determining the limit of
liability.
3. As
regards objects of which the passenger takes charge himself the liability of
the carrier is limited to five thousand francs per passenger.
4. The
limits prescribed in this Article shall not prevent the court from awarding, in
accordance with its own law, in addition, the whole or part of the court costs
and of the other expenses of the litigation incurred by the plaintiff. The
foregoing provision shall not apply if the amount of the damages awarded,
excluding court costs and other expenses of the litigation, does not exceed the
sum which the carrier has offered in writing to the plaintiff within a period
of six months from the date of the occurrence causing the damage, or before the
commencement of the action, if that is later.
5. The
sums mentioned in francs in this Article shall be deemed to refer to a currency
unit consisting of sixty‑five and a half milligrammes of gold of
millesimal fineness nine hundred. These sums may be converted into national
currencies in round figures. Conversion of the sums into national currencies
other than gold shall, in case of judicial proceedings, be made according to
the gold value of such currencies at the date of the judgment.
6. 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 judgment. 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 judgment, 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 paragraph 2 (b) 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 two hundred and fifty
monetary units per kilogramme. The monetary unit corresponds to sixty‑five
and a half milligrammes of gold of millesimal fineness nine hundred. This sum
may be converted into the national currency concerned in round figures. The
conversion of this sum into the national currency shall be made according to
the law of the State concerned.
Article 23
1. Any
provision tending to relieve the carrier of liability or to fix a lower limit
than that which is laid down in 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.
2. Paragraph
1 of this Article shall not apply to provisions governing loss or damage
resulting from the inherent defect, quality or vice of the cargo carried.
Article 24
1. In
the carriage of passengers and baggage, any action for damages, however
founded, can only be brought subject to the conditions and limits 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.
2. In
the carriage of 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 limits of liability 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. Such limits of liability
constitute maximum limits and may not be exceeded whatever the circumstances
which gave rise to the liability.
Article 25
In
the carriage of passengers and baggage, the limits of liability specified in
Article 22 shall not apply if it is proved that the damage resulted from an act
or omission of the carrier, his servants or agents, done with intent to cause
damage or recklessly and with knowledge that damage would probably result;
provided that, in the case of such act or omission of a servant or agent, it is
also proved that he was acting within the scope of his employment.
Article 25A
1. If
an action is brought against a servant or agent of the carrier arising out of
damage to which this Convention relates, such servant or agent, if he proves
that he acted within the scope of his employment, shall be entitled to avail
himself of the limits of liability which that carrier himself is entitled to
invoke under Article 22.
2. The
aggregate of the amounts recoverable from the carrier, his servants and agents,
in that case, shall not exceed the said limits.
3. In
the carriage of passengers and baggage, the provisions of paragraphs 1 and 2 of
this Article shall not apply if it is proved that the damage resulted from an
act or omission of the servant or agent done with intent to cause damage or
recklessly and with knowledge that damage would probably result.
Article 26
1. Receipt
by the person entitled to delivery of baggage or cargo without complaint is prima
facie evidence that the same has been delivered in good condition and in
accordance with the document of carriage.
2. In
the case of damage, the person entitled to delivery must complain to the
carrier forthwith after the discovery of the damage, and, at the latest, within
seven days from the date of receipt in the case of baggage and fourteen days
from the date of receipt in the case of cargo. In the case of delay the complaint
must be made at the latest within twenty‑one days from the date on which
the baggage or cargo have been placed at his disposal.
3. Every
complaint must be made in writing upon the document of carriage or by separate
notice in writing despatched within the times aforesaid.
4. Failing
complaint within the times aforesaid, no action shall lie against the carrier,
save in the case of fraud on his part.
Article 27
In
the case of the death of the person liable, an action for damages lies in
accordance with the terms of this Convention against those legally representing
his estate.
Article 28
1. An
action for damages must be brought, at the option of the plaintiff, in the
territory of one of the High Contracting Parties, either before the Court
having jurisdiction where the carrier is ordinarily resident, or has his
principal place of business, or 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 Convention, and is deemed to be one of the contracting parties to the
contract of carriage in so far as the contract deals with that part of the
carriage which is performed under his supervision.
2. In
the case of carriage of this nature, the passenger or his representative can
take action only against the carrier who performed the carriage during which
the accident or the delay occurred, save in the case where, by express
agreement, the first carrier has assumed liability for the whole journey.
3. As
regards baggage or cargo, the passenger or consignor will have a right of
action against the first carrier, and 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, or damage or delay took place. These
carriers will be jointly and severally liable to the passenger or to the
consignor or consignee.
Article 30A
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—Provisions Relating to
Combined Carriage
Article 31
1. In
the case of combined carriage performed partly by air and partly by any other
mode of carriage, the provisions of this Convention apply only to the carriage
by air, provided that the carriage by air falls within the terms of Article 1.
2. Nothing
in this Convention shall prevent the parties in the case of combined carriage
from inserting in the document of air 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—General and Final Provisions
Article 32
Any
clause contained in the contract and all special agreements entered into before
the damage occurred by which the parties purport to infringe the rules laid
down by this Convention, whether by deciding the law to be applied, or by
altering the rules as to jurisdiction, shall be null and void. Nevertheless for
the carriage of cargo arbitration clauses are allowed, subject to this
Convention, if the arbitration is to take place within one of the jurisdictions
referred to in the first paragraph of Article 28.
Article 33
Except
as provided in paragraph 3 of Article 5, nothing in this Convention shall
prevent the carrier either from refusing to enter into any contract of carriage
or from making regulations which do not conflict with the provisions of this
Convention.
Article 34
The
provisions of Articles 3 to 8 inclusive relating to documents of carriage shall
not apply in the case of carriage performed in extraordinary circumstances
outside the normal scope of an air carrier’s business.
Article 35
The
expression “days” when used in this Convention means current days not working
days.
Article 36
The
Convention is drawn up in French in a single copy which shall remain deposited
in the archives of the Ministry for Foreign Affairs of Poland and of which one
duly certified copy shall be sent by the Polish Government to the Government of
each of the High Contracting Parties.
Article 40A
1. In
Article 37, paragraph 2 and Article 40, paragraph 1, the expression High Contracting
Party shall mean State. In all other cases, the expression High Contracting
Party shall mean a State whose ratification of or adherence to the
Convention has become effective and whose denunciation thereof has not become
effective.
2. For
the purposes of the Convention the word territory means not only the
metropolitan territory of a State but also all other territories for the
foreign relations of which that State is responsible.
Article 41
Any
High Contracting Party shall be entitled not earlier than two years after the
coming into force of this Convention to call for the assembling of a new
international Conference in order to consider any improvements which may be
made in this Convention. To this end he will communicate with the Government of
the French Republic which will take the necessary measures to make preparations
for such Conference.
Additional Protocol
(with
reference to Article 2)
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.
REMAINING OPERATIVE PROVISIONS OF THE HAGUE
PROTOCOL
Article XIX
As
between the Parties to this Protocol, the Convention and the Protocol shall be
read and interpreted together as one single instrument and shall be known as
the Warsaw Convention as amended at The Hague, 1955.
Article XXVI
No
reservation may be made to this Protocol except that a State may at any time
declare by a notification addressed to the Government of the People’s Republic
of Poland that the Convention as amended by this Protocol shall not apply to
the carriage of persons, cargo and baggage for its military authorities on
aircraft, registered in that State, the whole capacity of which has been
reserved by or on behalf of such authorities.
REMAINING
OPERATIVE PROVISIONS OF THE MONTREAL
NO. 3 PROTOCOL
Montreal
Protocol No. 4
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
THE GOVERNMENTS UNDERSIGNED
CONSIDERING
that it is desirable 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,
HAVE AGREED as follows:
Chapter I—Amendments to the Convention
[omitted]
Chapter II—Scope of Application of the
Convention as Amended
Article XIV
The
Warsaw Convention as amended at The Hague in 1955 and by this Protocol shall
apply to international carriage as defined in Article 1 of the Convention,
provided that the places of departure and destination referred to in that
Article are situated either in the territories of two parties to this Protocol
or within the territory of a single party to this Protocol with an agreed
stopping place in the territory of another State.
Chapter III—Final Clauses
Article XV
As
between the Parties to this Protocol, the Warsaw Convention as amended at The
Hague in 1955 and this Protocol shall be read and interpreted together as one
single instrument and shall be known as the Warsaw Convention as amended at
The Hague, 1955, and by Protocol No. 4 of Montreal, 1975.
Article XVI
Until
the date on which this Protocol comes into force in accordance with the
provisions of Article XVIII, it shall remain open for signature by any State.
Article XVII
1. This
Protocol shall be subject to ratification by the signatory States.
2. Ratification
of this Protocol by any State which is not a Party to the Warsaw Convention or
by any State which is not a Party to the Warsaw Convention as amended at The
Hague, 1955, shall have the effect of accession to the Warsaw Convention as
amended at The Hague, 1955, and by Protocol No. 4 of Montreal, 1975.
3. The
instruments of ratification shall be deposited with the Government of the
Polish People’s Republic.
Article XVIII
1. As
soon as thirty signatory States have deposited their instruments of
ratification of this Protocol, it shall come into force between them on the
ninetieth day after the deposit of the thirtieth instrument of ratification. It
shall come into force for each State ratifying thereafter on the ninetieth day
after the deposit of its instrument of ratification.
2. As
soon as this Protocol comes into force it shall be registered with the United
Nations by the Government of the Polish People’s Republic.
Article XIX
1. This
Protocol, after it has come into force, shall be open for accession by any non‑signatory
State.
2. Accession
to this Protocol by any State which is not a Party to the Warsaw Convention or
by any State which is not a Party to the Warsaw Convention as amended at The
Hague, 1955, shall have the effect of accession to the Warsaw Convention as
amended at The Hague, 1955, and by Protocol No. 4 of Montreal, 1975.
3. Accession
shall be effected by the deposit of an instrument of accession with the
Government of the Polish People’s Republic and shall take effect on the
ninetieth day after the deposit.
Article XX
1. Any
Party to this Protocol may denounce the Protocol by notification addressed to
the Government of the Polish People’s Republic.
2. Denunciation
shall take effect six months after the date of receipt by the Government of the
Polish People’s Republic of the notification of denunciation.
3. As
between the Parties to this Protocol, denunciation by any of them of the Warsaw
Convention in accordance with Article 39 thereof or of The Hague Protocol in
accordance with Article XXIV thereof shall not be construed in any way as
denunciation of the Warsaw Convention as amended at The Hague, 1955, and by
Protocol No. 4 of Montreal, 1975.
Article XXI
1. Only
the following reservations may be made to this Protocol:
a) a State may at any time declare by a notification
addressed to the Government of the Polish People’s Republic that the Warsaw
Convention as amended at The Hague, 1955, and by Protocol No. 4 of
Montreal, 1975, shall not apply to the carriage of persons, baggage and
cargo for its military authorities on aircraft, registered in that State, the
whole capacity of which has been reserved by or on behalf of such authorities;
and
b) any State may declare at the time of ratification of or
accession to the Additional Protocol No. 3 of Montreal, 1975, or at any
time thereafter, that it is not bound by the provisions of the Warsaw
Convention as amended at The Hague, 1955, and by Protocol No. 4 of
Montreal, 1975, in so far as they relate to the carriage of passengers and
baggage. Such declaration shall have effect ninety days after the date of
receipt of the declaration by the Government of the Polish People’s Republic.
2. Any
State having made a reservation in accordance with the preceding paragraph may
at any time withdraw such reservation by notification to the Government of the
Polish People’s Republic.
Article XXII
The
Government of the Polish People’s Republic shall promptly inform all States
Parties to the Warsaw Convention or to that Convention as amended, all
signatory or acceding States to the present Protocol, as well as the
International Civil Aviation Organization, of the date of each signature, the
date of deposit of each instrument of ratification or accession, the date of
coming into force of this Protocol, and other relevant information.
Article XXIII
As
between the Parties to this Protocol which are also Parties to 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 referred to as the “Guadalajara Convention”) any reference to the
“Warsaw Convention” contained in the Guadalajara Convention shall include
reference to the Warsaw Convention as amended at The Hague, 1955, and by
Protocol No. 4 of Montreal, 1975, in cases where the carriage under
the agreement referred to in Article 1, paragraph b) of the Guadalajara
Convention is governed by this Protocol.
Article XXIV
If
two or more States are Parties both to this Protocol and to the Guatemala City
Protocol, 1971, or to the Additional Protocol No. 3 of Montreal, 1975, the
following rules shall apply between them:
a) the provisions resulting from the system established by
this Protocol, concerning cargo and postal items, shall prevail over the
provisions resulting from the system established by the Guatemala City Protocol,
1971, or by the Additional Protocol No. 3 of Montreal, 1975;
b) the provisions resulting from the system established by
the Guatemala City Protocol, 1971, or by the Additional Protocol No. 3 of Montreal,
1975, concerning passengers and baggage, shall prevail over the provisions
resulting from the system established by this Protocol.
Article XXV
This
Protocol shall remain open for signature until 1 January 1976 at the
Headquarters of the International Civil Aviation Organization and thereafter
until it comes into force in accordance with Article XVIII at the Ministry for
Foreign Affairs of the Polish People’s Republic. The International Civil
Aviation Organization shall promptly inform the Government of the Polish
People’s Republic of any signature and the date thereof during the time that
the Protocol shall be open for signature at the Headquarters of the
International Civil Aviation Organization.
IN
WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly authorized,
have signed this Protocol.
DONE AT MONTREAL on the twenty‑fifth day of September
of the year One Thousand Nine Hundred and Seventy‑five in four authentic
texts in the English, French, Russian and Spanish languages. In the case of any
inconsistency, the text in the French language, in which language the Warsaw
Convention of 12 October 1929 was drawn up, shall prevail.