Updated: Tuesday October 11, 2016/AthThulatha
Muharram 10, 1438/Mangalavara
Asvina 19, 1938, at 03:03:36 PM
The Carriage by Air Act, 2012
ACT NO. IV OF 2012
[8th February, 2012]
An Act to give effect in Pakistan to the Conventions
concerning international carriage by air known as the Montreal Convention for
the Unification of Certain Rules for International Carriage by Air 1999 and
consolidate the law and applicable international conventions in relation to
international carriage by air.
WHEREAS it is expedient to give effect
in Pakistan to the Convention concerning international carriage by air known as
the Montreal Convention for the Unification of Certain Rules for International
Carriage by Air, 1999, and to enable the rules contained in that Convention to
be applied, subject to exceptions adaptations and modifications, to carriage by
air in Pakistan which is not international carriage within the meaning of the
Convention, and to provide for matters connected herewith or ancillary thereto;
AND WHEREAS it is expedient to
consolidate the existing law and applicable international conventions in
relation to international carriage by air;
It is hereby enacted as follows:---
1. Short title, extent and
commencement.___(1) This Act may be called the Carriage by Air Act,
2012.
(2) It extends to the whole of
(3) It shall come into force at once.
(4) The applicable provisions of the
Carriage by Air Conventions shall have the force of law in
Provided that the provisions of
Carriage by Air Conventions shall not apply to international carriage by air
performed and operated directly by the Islamic Republic of Pakistan for
non-commercial purposes in respect to its functions and duties as a sovereign
state and to the carriage of persons, cargo and baggage for the military
authorities on the aircraft registered in or leased by the Islamic Republic of
Pakistan, the whole capacity of which has been reserved by or on behalf of such
authorities.
(5) Sub-section (4) is subject to the
other provisions of this Act.
2. Definitions.___ In this Act, unless there is anything repugnant in
the subject or context,---
(a)”applicable
provisions” means,---
(i) the
provisions of the Warsaw Convention,1929, as set out in the First Schedule;
(ii) the
provisions of the Warsaw Convention as amended at
(iii) the
provisions of the Guadalajara Convention, 1961, as set out in the Third
Schedule; and
(iv) the
provisions of the Montreal Convention, 1999, as set out in the Fourth Schedule;
so
far as they relate to the rights and liabilities of carriers, carriers'
servants and agents, passengers, consignors, consignees and other persons;
(b) “Carriage
by Air Conventions” means,---
(i) the Convention known as the Warsaw Convention, 1929;
(ii) the Convention known as the Warsaw Convention as
amended at
(iii) the Convention supplementary to that Convention known
as the Guadalajara Convention 1961; and
(iv)
the Convention known as the Montreal
Convention 1999.
(c) “Schedule”
means the Schedule to this Act.
3. Application of the Carriage by
Air Conventions, as amended, to
(2) The rules contained in the Second
Schedule, being the provisions of the Convention for the unification of certain
rules relating to international carriage by air known as the Warsaw Convention
as amended at the Hague, 1955, shall, subject to the provisions of this Act,
have the force of law in Pakistan in relation to any carriage by air to which
those rules apply, irrespective of the nationality of the aircraft performing
the carriage.
(3) The rules contained in the Third
Schedule, being the provisions of the Convention supplementary to the Warsaw
Convention, 1929 for the unification of certain rules relating to international
carriage by air performed by a person other than the contracting carrier, known
as the Guadalajara Convention, 1961, shall, subject to the provisions of this
Act, have the force of law in Pakistan in relation to any carriage by air to
which those rules apply, irrespective of the nationality of the aircraft
performing the carriage and the rules contained in the Third Schedule shall be
supplementary to, and form part of, the rules contained in the First Schedule
or, as the case may be, the Second Schedule, and shall have effect accordingly.
(4) The rules contained in the Fourth
Schedule, being the provisions of the Convention for the unification of certain
rules relating to international carriage by air known as the Montreal
Convention for the Unification of Certain Rules for International Carriage by
Air, 1999, shall, subject to the provisions of this Act, have the force of law
in Pakistan in relation to any carriage by air to which those rules apply,
irrespective of the nationality of the aircraft performing the carriage.
(5) Notwithstanding anything contained
in the Fatal Accidents Act 1855 (XIII of 1855), or any other law for the time
being in force, the rules contained in the First, Second, Third or, as the case
may be, Fourth Schedule shall, in all cases to which those rules apply,
determine the liability of a carrier in respect of the death of a passenger,
and the rules contained in the Sixth Schedule shall determine the persons by
whom and for whose benefit and the manner in which such liability may be
enforced.
(6) Any sums mentioned in rules 21, 22,
23 or 24 of the Fourth Schedule shall, for the purpose of any action against a
carrier, be converted into rupees at the rate of exchange prevailing on the
date on which the amount of damages to be paid by the carrier is ascertained by
the Court.
(7) Any sum in francs mentioned in rule
22 of the First Schedule and as the case may be, rule 22 of the Second
Schedule, shall, for the purpose of any action against a carrier, be converted
into rupees at the rate of exchange prevailing on the date on which the amount
of damages to be paid by the carrier is ascertained by the Court.
(8) Any reference in the first, Second,
Third and Fourth Schedules,---
(a) to the
territory of any High Contracting Party or Parties or State Party or Parties to
the convention shall be construed as a reference to all the territories in
respect of which he is a party; and
(b) agents
of the carrier shall be construed as including a reference to servants of the
carrier.
(9) The applicability of the Carriage
by Air Conventions to any international carriage by air, as defined by the
First, Second or, as the case may be, the Fourth Schedule, shall be dependent
on the High Contracting Party or Parties or State Party or Parties,
as the case may be being a signatory or signatories to the same Carriage by Air
Convention.
(10) If more than one of the Carriage
by Air Conventions apply to a carriage by air, the applicable provisions that
shall have the force of law shall be those of whichever is the most recent
applicable Carriage by Air Convention in force.
4. Provisions regarding suits
against High contracting Party or Parties or State Party or Parties who
undertake carriage by air.___ (1) Every High contracting Party or Parties or State
Party or Parties to the Carriage by Air Conventions shall, for the purposes of
any suit brought in a court in Pakistan in accordance with,---
(a)
provisions of rule 28 of the First Schedule where a High contracting Party to
the Warsaw Convention, 1929,has not availed himself of the provisions of the
Additional Protocol thereto; or
(b) the
provisions of rule 28 of the Second Schedule where a High Contracting Party to
the Warsaw Convention as amended at The Hague, 1955, has not availed himself of
the provisions of the Additional Protocol thereto; or
(c)
the provisions of rule 33 of the
Fourth Schedule,
to enforce a claim in respect of
carriage undertaken by him, be deemed to have submitted to the jurisdiction of
that Court and to be a person for the purposes of the Code of Civil Procedure,
1908 (Act V of 1908).
(2) The High Court may make rules of
procedure providing for all matters which may be expedient to enable such suits
to be instituted and carried on.
(3) Nothing in this section shall
authorize any Court to attach or sell any property of a High contracting Party
or Parties or State Party or Parties to the Carriage by Air Conventions.
5. Application of Act to carriage by
air which is not international.___(1) The rules contained in the fifth Schedule shall
apply to all, carriage by air, not being international carriage by air as
defined in the First, Second, or as the case may be, Fourth Schedule.
(2) Notwithstanding anything contained
in the Fatal Accidents Act, 1855 (XIII of 1855), or any other law for the time
being in force, the rules contained in the Fifth Schedule shall, in all cases
to which those rules apply, determine the liability of a carrier in respect of
the death of a passenger, and the rules contained in the Sixth Schedule shall
determine the persons by whom and for whose benefit and the manner in which
such liability may be enforced.
(3) The Federal Government, shall every
three years, if not earlier, review all limits of liability provided for
carriage by air, not being international carriage, in rules 21 and 22 of the
fifth Schedule, any subsequent notifications thereto or any other law, and
shall in the Official Gazette, accordingly notify the reviewed amounts of all
such limits of liability.
6. Issuance of substitution of
electronic means for delivering documents of carriage.___ (1) Nothing contained in this Act shall prevent the
issuance of an individual or collective document of carriage through electronic
means which preserves the information required by the applicable provisions
contained, as the case may be, in the First, Second, Fourth and Fifth Schedules
as a substitute for the delivery of the document referred to in those
applicable provisions and if any such other means is used, the carrier shall
offer to deliver to the passenger a written statement of the information so
preserved:---
Provided that an electronic document of
carriage shall be deemed to be a negotiable instrument as defined in section 13
of the Negotiable Instruments Act, 1881 (XXVI of 1881), and may be dealt with
in any manner as a paper document of carriage and the Electronic Transactions
Ordinance 2002 (LI of 2002), shall apply to such electronic document of
carriage notwithstanding the provisions of clause (a) of section (1) of section
31 thereof.
(2) Notwithstanding anything contained
in section 31 of the Electronic Transactions Ordinance 2002 (LI of 2002), any
document mentioned in this Act issued through electronic means shall be deemed
to be a document for the purposes of the Electronic Transactions Ordinance,
2002 (LI of 2002), and all references to such document in this Act and the
applicable provisions contained in the First, Second, Fourth and Fifth
Schedules shall include their ‘electronic form’ and all such documents shall
attract all the protections and exemptions provided for in the Electronic Transaction
Ordinance 2002 (LI of 2002).
7. Repeal.– The Carriage by Air Act, 1934 (XX of 1934), the
Carriage by Air (International Convention) Act, 1966 (X of 1966), and the
Carriage by Air (Supplementary Convention) Act, 1968 (V of 1968) are hereby
repealed.
[See section 3 (1)]
THE
UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL
CARRIAGE BY AIR RELATING TO THE RIGHTS AND LIABILITIES OF CARRIERS PASSENGERS,
CONSIGNORS, CONSIGNEES AND OTHER PERSONS.
RULES
SCOPE – DEFINITIONS
1.
(1) These rules apply to all international carriage of persons,
luggage or goods performed by aircraft for reward. They apply also to such
carriage when performed gratuitously by an air transport undertaking.
(2) In
these rules “High Contracting Party” means a High Contracting Party to the
Convention.
(3) For the purposes of these rules the
expression “international carriage” means any carriage in which, according to
the contract made by the parties, the place of departure and the place of
destination, whether or not there be a break in the carriage or a
transshipment, 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 the 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 purposes of these rules.
(4) A carriage to be performed by several
successive air carriers is deemed, for the purposes of these rules, to be one
undivided carriage, if it has been regarded by the parties as a single
operation, whether it has 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.
2. (1) These rules
apply to carriage performed by the State or by legally constituted public
bodies provided it falls within the conditions laid down in rule 1.
(2) These rules do not apply to
carriage performed under the terms of any international postal Convention.
CHAPTER II
DOCUMENTS OF CARRIAGE
3. (1) For the carriage of passengers
the carrier must deliver a passenger ticket which shall contain the following
particularsÇ---
(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 carrier or carriers;
(e) a
statement that the carriage is subject to the rules relating to liability
Contained in this Schedule.
(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 these rules.
Nevertheless, if the carrier accepts a passenger without a passenger ticket
having been delivered he shall not be entitled to avail himself those
provisions of this Schedule which exclude or limit his liability.
4. (1) For the carriage of luggage,
other than small personal objects of which the passenger takes charge himself,
the carrier must deliver a luggage ticket.
(2) The luggage ticket shall be made
out in duplicate, one part for the passenger and the other part for the
carrier.
(3) The luggage ticket 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 luggage will be made to the bearer of the
luggage ticket;
(f) the
number and weight of the packages;
(g) the
amount of the value declared in accordance with rule 22 (2);
(h) a
statement that the carriage is subject to the rules relating to liability
contained in this Schedule.
(4) The absence, irregularity or loss
of the luggage ticket does not affect the existence or the validity of the
contract of carriage, which shall none the less be subject to these rules.
Nevertheless, if the carrier accepts luggage without a luggage ticket having
been delivered, or if the luggage ticket does not contain the particulars set
out at (d), (f) and (h) of sub-rule (3), the carrier shall not be entitled to
avail himself of those provisions of this Schedule which exclude or limit his
liability.
PART III. Air
consignment note
5. (1) Every carrier of goods has the
right to require the consignor to make out and hand over to him a document
called an “air consignment note”; 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 rule 9, be none the less
governed by these rules.
6. (1) The air consignment note shall
be made out by the consignor in three original parts and be handed over with
the goods.
(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 goods. The third part shall be signed by the
carrier and handed by him to the consignor after the goods have been accepted.
(3) The carrier shall
sign an acceptance of the goods.
(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 consignment note, he shall be deemed,
subject to proof to the contrary to have done so on behalf of the consignor.
7. The carrier of goods has the right
to require the consignor to make out separate consignment notes when there is
more than one package.
8. The air consignment note 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 goods;
(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 goods;
(j) the
apparent condition of the goods 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
goods are sent for payment on delivery, the price of the goods and, if the case
so requires, the amount of the expenses incurred;
(m) the amount of the value declared in accordance with
rule 22(2);
(n) the
number of parts of the air consignment note;
(o) the
documents handed, to the carrier to accompany the air consignment note;
(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
contained in this Schedule.
9. If the carrier accepts goods without
an air consignment note having been made out, or if the air consignment note
does not contain all the particulars set out in rule 8(a) to (i) inclusive and
(q), the carrier shall not be entitled to avail himself of the provisions of
this Schedule which exclude or limit his liability.
10. (1) The consignor is responsible
for the correctness of the particulars and statements relating to the goods
which he inserts in the air consignment note.
(2) The consignor will be liable for
all damage suffered by the carrier or any other person by reason of the
irregularity, incorrectness or incompleteness of the said particulars and
statements.
11. (1) The air consignment note is prima
facie evidence of the conclusion of the contract, of the receipt of the
goods and of the conditions of carriage.
(2) The statements in the air
consignment note relating to the weight, dimensions and packing of the goods,
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 goods do not constitute evidence against the carrier except so
far as they both have been, and are stated in the air consignment note to have
been, checked by him in the presence of the consignor, or relate to the
apparent condition of the goods.
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 goods by withdrawing them at the aerodrome of
departure or destination, or by stopping them in the course of the journey on
any landing, or, by calling for them 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 consignment note, or by requiring them 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 goods without
requiring the production of the part of the air consignment note 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 consignment note.
(4)The right conferred on the consignor
ceases at the moment when that of the consignee begins in accordance with rule
13. Nevertheless, if the consignee declines to accept the consignment note or
the goods, or if he cannot be communicated with, the consignor resumes his
right of disposition.
13. (1) Except in the circumstances set
out in rule 12, the consignee is entitled, on arrival of the goods at the place
of destination, to require the carrier to hand over to him the air consignment
note and to deliver the goods to him, on payment of the charges due and on
complying with the conditions of carriage set out in the air consignment note.
(2) Unless it is otherwise agreed, it
is the duty of the carrier to give notice to the consignee as soon as the goods
arrive.
(3) If the carrier admits the loss of
the goods, or if the goods have not arrived at the expiration of seven days
after the date on which they ought to have arrived, the consignee is entitled
to put into force against the carrier the rights which flow from the contract
of carriage.
14. The consignor and the consignee can
respectively enforce all the rights given them by rules 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.
15. (1) Rules 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 rules 12, 13, and
14 can only be varied by express provision in the air consignment note:
Provided that an electronic document of
carriage shall be deemed to be a negotiable instrument as defined in section 13
of the Negotiable Instruments Act, 1881 (XXVI of 1881) and may be dealt with in
any manner as a paper document of carriage and the Electronic Transactions
Ordinance 2002 shall apply to such electronic document of carriage
notwithstanding section 31(1)(a) of the Electronic Transactions Ordinance 2002.
16. (1) The consignor must furnish such
information and attach to the air consignment note such documents as are
necessary to meet the formalities of customs, octroi or police before the goods
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 agents.
(2) The carrier is under no obligation
to enquire into the correctness or sufficiency of such information or
documents.
CHAPTER III
LIABILITY OF THE CARRIER
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.
18. (1) The carrier is liable for
damage sustained in the event of the destruction or loss of, or of damage to,
any registered luggage or any goods, 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
luggage or goods are 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.
19. The carrier is liable for damage
occasioned by delay in the carriage by air of passengers, luggage or goods.
20. (1) The carrier is not liable if he
proves that he and his 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 goods and
luggage 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.
21. If the carrier
proves that the damage was caused by or contributed to by the negligence of the
injured person the Court may exonerate the carrier wholly or partly from his
liability.
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 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
luggage and of goods, 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 in this rule
shall be deemed to refer to the French franc consisting of 65-˝ milligrams gold
of milesimal fineness 900.
23. Any provision tending to relieve
the carrier of liability or to fix a lower limit than that which is laid down
in these rules shall be null and void, but the nullity of any such provision
does not involve the nullity of the whole contract, which shall remain subject
to the provisions of this Schedule.
24. (1) In the cases covered by rules
18 and 19 any action for damages, however founded, can only be brought subject
to the conditions and limits set out in this Schedule.
(2) In the cases covered by rule 17 the
provisions of sub-rule (1) 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.
25. (1) The carrier shall not be
entitled to avail himself of the provisions of this Schedule which exclude or
limit his liability, if the damage is caused by his willful misconduct or by
such default on his part as is in the opinion of the Court equivalent to
willful 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 agent of the carrier acting within the scope of his
employment.
26. (1) Receipt by
the person entitled to delivery of luggage or goods without complaint is prima
facie evidence that the same have 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 luggage and seven days from the date of receipt in the case of
goods. In the case of delay the complaint must be made at the latest within
fourteen days from the date on which the luggage or goods 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
dispatched 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.
27. In the case of the death of the
person liable, an action for damages lies in accordance with these rules
against those legally representing his estate.
28. An action for damages must be
brought at the option of the plaintiff, 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.
29. The right of 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.
30. (1) In the case of carriage to be
performed by various successive carriers and falling within the definition set
out in sub-rule (4) of rule 1, each carrier who accepts passengers, luggage or
goods is subjected to the rules set out in this Schedule, and is deemed to be
one of the contracting parties to the contract of carriage in so far as the
contract deals with that part of the carriage which is performed under his
supervision.
(2)In the case of carriage of this
nature, the passenger or his representative can take action only against the
carrier who performed the carriage during which the accident or the delay
occurred, save in the case where, by express agreement, the first carrier has
assumed liability for the whole journey.
(3) As regards luggage or goods, the
passenger or consignor will have a right of action against the first carrier,
and the passenger or consignee who is entitled to delivery will have a right of
action against the last carrier, and further, each may take action against the
carrier who performed the carriage during which the destruction, loss, damage
or delay took place. These carriers will be jointly and severally liable to the
passenger or to the consignor or consignee.
PROVISIONS RELATING TO COMBINED CARRIAGE
31. (1) In the case of combined
carriage performed partly by air and partly by any other mode of carriage, the
provisions of this Schedule apply only to the carriage by air, provided that
the carriage by air falls within the terms of rule 1.
(2) Nothing in this Schedule shall
prevent the parties in the case of combined carriage from inserting in the
document of air carriage conditions relating to other modes of carriage,
provided that the provisions of this Schedule are observed as regards the
carriage by air.
CHAPTER V
GENERAL AND FINAL PROVISIONS
32. Any clause contained in the
contract and all special agreements entered into before the damage occurred by
which the parties purport to infringe the rules laid down by this Schedule,
whether by deciding the law to be applied, or by altering the rules as to
jurisdiction, shall be null and void. Nevertheless for the carriage of goods
arbitration clauses are allowed, subject to these rules, if the arbitration is
to take place in the territory of one of the High Contracting Parties within
one of the jurisdictions referred to in rule 28.
33. Nothing contained in this Schedule
shall prevent the carrier either from refusing to enter into any contract of
carriage, or from making regulations which do not conflict with the provisions
of this Schedule.
34. This Schedule does not apply to
international carriage by air performed by way of experimental trial by air
navigation undertakings with the view to the establishment of a regular line of
air navigation, nor does it apply to carriage performed in extraordinary
circumstances outside the normal scope of an air carrier’s business.
35. The expression “days” when used in
these rules means current days, not working days.
36. When a High Contracting Party has
declared at the time of ratification of or of accession to the Convention that
the first paragraph of Article 2 of the 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, these rules shall not apply to
international carriage by air so performed.
[See section 3(2)]
THE WARSAW CONVENTION AS AMENDED AT
RULES
CHAPTER I
SCOPE - DEFINITIONS
1. (1) These rules apply to all
international carriage of persons, baggage or goods performed by aircraft for
reward. They apply also to such carriage when performed gratuitously by an air
transport undertaking.
(2) In these rules “High Contracting
Party” means a High Contracting Party to the Convention.
(3) For the purposes of these rules 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
trans-shipment, 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 these rules.
(4) Carriage to be performed by several
successive air carriers is deemed, for the purposes of these rules, 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.
2. (1) These rules apply to carriage
performed by the State or by, legally constituted public bodies provided it
falls within the conditions laid down in rule 1.
(2) These rules shall not apply to
carriage of mail and postal packages.
DOCUMENTS OF CARRIAGE
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, and 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 these rules. 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
sub-rule 1(c) of this rule, the carrier shall not be entitled to avail himself
of the provisions of rule 22.
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 rule 3, sub-rule (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 these rules. 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 rule 3, sub-rule 1 (c),
does not include the notice required by sub-rule 1 (c) of this rule, he shall
not be entitled to avail himself of the provisions of rule 22, sub-rule (2).
5. (1) Every carrier of goods 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 rule 9, be none the less,
governed by these rules.
6. (1) The air waybill shall be made
out by the consignor in three original parts and be handed over with the goods.
(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 goods. The third part shall be signed by the
carrier and handed by him to the consignor after the goods have been accepted.
(3) The carrier shall sign prior to the
loading of the goods 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.
7. The carrier of goods has the right
to require the consignor to make out separate waybills when there is more than
one package.
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
goods.
9. If, with the consent of the carrier,
goods are 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 rule 8,
paragraph (c), the carrier shall not be entitled to avail himself of the
provisions of rule 22, sub-rule (2).
10. (1) The consignor is responsible
for the correctness of the particulars and statement relating to the goods
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.
11. (1) The air way bill is prima
facie evidence of the conclusion of the contract, of the receipt of the
goods and of the conditions of carriage.
(2) The statements in the airway bill
relating to the weight, dimensions and packing of the goods, 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 goods
do not constitute evidence against the carrier except so far as they both have
been, and are stated in the airway bill to have been, checked by him in the
presence of the consignor, or relate to the apparent condition of the goods.
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 goods by withdrawing them at the aerodrome of
departure or destination, or by stopping them in the course of the journey on
any landing, or by calling for them 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 airway bill, or by requiring them 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 consignor 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 goods without requiring the production
of the part of the airway bill 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 way bill.
(4) The right conferred on the
consignor ceases at the moment when that of the consignee begins in accordance
with rule 13. Nevertheless, if the consignee declines to accept the air way
bill or the goods, or if he cannot be communicated with, the consignor resumes
his right of disposition.
13. (1) Except in the circumstances set
out in rule 12, the consignee is entitled, on arrival of the goods at the place
of destination, to require the carrier to hand over to him the airway bill and
to deliver the goods to him, on payment of the charges due and on complying
with the conditions of carriage set out in the airway bill.
(2) Unless it is otherwise agreed, it
is the duty of the carrier to give notice to the consignee as soon as the goods
arrive.
(3) If the carrier admits the loss of
the goods, or if the goods have not arrived at the expiration of seven days
after the date on which they ought to have arrived, the consignee is entitled
to put into force against the carrier the rights which flow from the contract
of carriage.
14. The consignor and the consignee can
respectively enforce all the rights given them by rules 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.
15. (1) Rules 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 rule 12, 13 and
14 can only be varied by express provision in the airway bill.
(3) Nothing in these rules prevents the
issue of a negotiable air waybill:---
Provided that an electronic document of
carriage shall be deemed to be a negotiable instrument as defined in section 13
of the Negotiable Instruments Act, 1881 (XXVI of 1881) and may be dealt with in
any manner as a paper document of carriage and the Electronic Transactions
Ordinance 2002 shall apply to such electronic document of
carriage notwithstanding section 31(1)(a) of the Electronic Transactions
Ordinance 2002.
16. (1) The consignor must furnish such
information and attach to the airway bill such documents as are necessary to
meet the formalities of customs, octroi or police before the goods 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 agents.
(2) The carrier is under no obligation
to enquire into the correctness or sufficiency of such information or documents.
CHAPTER III
LIABILITY OF THE CARRIER
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.
18. (1) The carrier is liable for
damage sustained in the event of the destruction or loss of, or of damage to,
any registered luggage or any goods, 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 sub-rule comprises the period during which the luggage
or goods are 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
transshipment, 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.
19. The carrier is liable for damage
occasioned by delay in the carriage by air of passengers, luggage or goods.
20. The carrier is not liable if he
proves that he and his servants or agents have taken all necessary measures to
avoid the damage or that it was impossible for him or them to take such
measures.
21. If the carrier
proves that the damage was caused by or contributed to by the negligence of the
injured person the Court may exonerate the carrier wholly or partly from his
liability.
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 seized of the case, damages may be 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 goods, the liability of the carrier is limited to a sum of two
hundred and fifty francs per kilogram, unless the passenger or consignor has
made, at the time when the package was handed over to the carrier, a special
declaration of interest in delivery at destination and has paid a supplementary
sum if the case so requires. In that case the carrier will be liable to pay a
sum not exceeding the declared sum, unless he proves that that sum is greater
than the passenger’s or consignor’s actual interest in delivery at destination.
(b) In the
case of loss, damage or delay of part of registered baggage or goods, 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 goods, or of
an object contained therein, affects the value of other packages covered by the
same baggage check or the same airway bill, 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 rule
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 rule 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
23. (1) Any provision
tending to relieve the carrier of liability or to fix a lower limit than that
which is laid down in these rules shall be null and void, but the nullity of
any such provision does not involve the nullity of the whole contract, which
shall remain subject to the provisions of this Schedule.
(2) Sub-rule (l) of this rule shall not
apply to provisions governing loss or damage resulting from the inherent
defect, quality or vice of the goods carried.
24. (1) In the cases covered by rules 18
and l9 any action for damages, however founded, can only be brought subject to
the conditions and limits set out in this Schedule.
(2) In the cases covered by rule 17 the
provisions of sub-rule (1) 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.
25. The limits of liability specified
in rule 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.
25A.(1) If an action is brought against
a servant or agent of the carrier arising out of damage to which these rules
relate, 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 rule 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 sub-rules (1) and
(2) of this rule 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.
26. (1) Receipt by the person entitled to
delivery of luggage or goods without complaint is prima facie evidence
that the same have 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 goods. 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 goods 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 dispatched 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.
27. In the case of the death of the
person liable, an action for damages lies in accordance with these rules
against those legally representing his estate.
28. An action for damages must be
brought at the option of the plaintiff, 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.
29. The right of 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.
30. (1) In the case of carriage to be
performed by various successive carriers and falling within the definition set
out in sub-rule (4) of rule 1, each carrier who accepts passengers, baggage or
goods is subjected to the rules set out in this Schedule, and is deemed to be
one of the contracting parties to the contract of carriage in so far as the
contract deals with that part of the carriage which is performed under his
supervision.
(2) In the case of carriage of this
nature, the passenger or his representative can take action only against the
carrier who performed the carriage during which the accident or the delay
occurred, save in the case where, by express agreement, the first carrier has
assumed liability for the whole journey.
(3) As regards baggage or goods, the
passenger or consignor will have a right of action against the first carrier,
and the passenger or consignee who is entitled to delivery will have a right of
action against the last carrier, and further, each may take action against the
carrier who performed the carriage during which the destruction, loss, damage
or delay took place. These carriers will be jointly and severally liable to the
passenger or to the consignor or consignee.
CHAPTER IV
PROVISIONS RELATING TO COMBINED CARRIAGE
31. (1) In the case of combined
carriage performed partly by air and partly by any other mode of carriage, the
provisions of this Schedule apply only to the carriage by air, provided that
the carriage by air falls within the terms of rule 1.
(2) Nothing in this
Schedule shall prevent the parties in the case of combined carriage from
inserting in the document of air carriage conditions relating to other mode of
carriage, provided that the provisions of this Schedule are observed as regards
the carriage by air.
CHAPTER V
GENERAL AND FINAL PROVISIONS
32. Any clause contained in the
contract and all special agreements entered into before the damage occurred by
which the parties purport to infringe the rules laid down by this Schedule,
whether by deciding the law to be applied, or by altering the rules as to
jurisdiction, shall be null and void. Nevertheless for the carriage of goods
arbitration clauses are allowed, subject to these rules, if the arbitration is
to take place in the territory of one of the High Contracting Parties within
one of the jurisdictions referred to in rule 28.
33. Nothing contained in this Schedule
shall prevent the carrier either from refusing to enter into any contract of
carriage, or from making regulations which do not conflict with the provisions
of this Schedule.
34. The provisions of rules 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.
35. The expression “days” when used in
these rules means current days, not working days.
36. For the purposes of these rules 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.
37. When a High Contracting Party has
declared at the time of ratification of or of accession to the Convention that
the first paragraph of Article 2 of the 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 these rules shall not apply to
international carriage by air so performed.
[See section 3(3)]
THE
RULES
(a) “Warsaw
Convention” means the Convention for the Unification of Certain Rules Relating
to International Carriage by Air signed at Warsaw on 12th 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.
2. If an actual carrier performs the
whole or part of carriage which according to the agreement referred to in
Article 1, paragraph (b), is governed by the Warsaw Convention, both the contracting
carrier and the actual carrier shall, except as otherwise provided in these
rules, 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.
3. 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.
4. 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.
5. 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.
6. 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 these rules 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.
7. 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 these rules, but none of the persons mentioned shall be
liable for a sum in excess of the limit applicable to him.
8. In relation to the carriage
performed by the actual carrier, an action for damages may be brought, at the
option of the plaintiff, against that carrier or the contracting carrier, or
against both together or separately. If the action is brought against only one
of those carriers, that carrier shall have the right to require the other
carrier to be joined in the proceedings, the procedure and effects being
governed by the law of the Court seized of the case.
9. Any action for damages contemplated
in rule 8 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.
10. Any contractual provision tending
to relieve the contracting carrier or the actual carrier of liability under
these rules or to fix a lower limit than that which is applicable according to
these rules 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 these rules.
11. In respect of the
carriage performed by the actual carrier, rule 10 shall not apply to
contractual provisions governing loss or damage resulting from the inherent
defect, quality or vice of the cargo carried.
12. 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 these rules, 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 these rules, if the arbitration is to take
place in one of the jurisdictions referred to in rule 9.
13. Except as provided in rule 8,
nothing in these rules shall affect the rights and obligations of the two
carriers between themselves.
THE FOURTH SCHEDULE
[See section 3(4)]
THE
UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL
CARRIAGE BY AIR.
RULES
CHAPTER I
GENERAL PROVISIONS
1. Scope of application. (1) This Schedule applies to all international
carriage of persons, baggage or cargo performed by aircraft for reward. It
applies equally to gratuitous carriage by aircraft performed by an air
transport undertaking.
(2) For the purposes of this Schedule,
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
transshipment, are situated either within the territories of two State Parties,
or within the territory of a single State Party if there is an agreed stopping
place within the territory of another State, even if that State is not a State
Party. Carriage between two points within the territory of a single State Party
without an agreed stopping place within the territory of another State is not
international carriage for the purposes of this Schedule.
(3) Carriage to be performed by several
successive carriers is deemed, for the purposes of this Schedule, to be one
undivided carriage if it has been regarded by the parties as
a single operation, whether it had been agreed upon under the form of a single
contract or of a series of contracts, and it does not lose its international
character merely because one contract or a series of contracts is to be
performed entirely within the territory of the same State.
(4) This Schedule applies also to
carriage as set out in Chapter V, subject to the terms contained therein.
2. Carriage performed by State and
carriage of postal items.(1) This Schedule applies to carriage performed by the
State or by legally constituted public bodies provided it falls within the
conditions laid down in rule 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 rule, the provisions of this Schedule shall not apply to the carriage
of postal items.
CHAPTER II
DOCUMENTATION AND DUTIES OF THE PARTIES RELATING TO
THE CARRIAGE OF PASSENGERS, BAGGAGE AND CARGO
3. Passengers and baggage. (1) In respect of carriage of passengers, an
individual or collective document of carriage shall be delivered containing:---
(a) an
indication of the places of departure and destination;
(b) if the
places of departure and destination are within the territory of a single State
Party, one or more agreed stopping places being within the territory of another
State, an indication of at least one such stopping place.
(2) Any other means which preserves the
information indicated in paragraph 1 may be substituted for the delivery of the
document referred to in that paragraph. If any such other means is used, the
carrier shall offer to deliver to the passenger a written statement of the
information so preserved.
(3) The carrier shall deliver to the
passenger a baggage identification tag for each piece of checked baggage.
(4) The passenger
shall be given written notice to the effect that where this Schedule is
applicable it governs and may limit the liability of carriers in respect of
death or injury and for destruction or loss of, or damage to, baggage, and for
delay.
(5) Non-compliance with the provisions
of the foregoing paragraphs shall not affect the existence or the validity of
the contract of carriage, which shall, nonetheless, be subject to the rules of
this Schedule including those relating to limitation of liability.
4. Cargo. (1) In respect of the carriage of cargo, an airway
bill shall be delivered.
(2) Any other means which preserves a
record of the carriage to be performed may be substituted for the delivery of
an airway bill. If such other means are used, the carrier shall, if so
requested by the consignor, deliver to the consignor a cargo receipt permitting
identification of the consignment and access to the information contained in
the record preserved by such other means.
5. Contents of airway bill or cargo
receipt. The airway bill or the cargo receipt shall include:---
(a) an
indication of the places of departure and destination;
(b) if the
places of departure and destination are within the territory of a single State
Party, one or more agreed stopping places being within the territory of another
State, an indication of at least one such stopping place; and
(c) an
indication of the weight of the consignment.
6. Document relating to the nature
of the cargo. The consignor may be required, if necessary, to meet
the formalities of customs, police and similar public authorities, to deliver a
document indicating the nature of the cargo. This provision creates for the
carrier no duty, obligation or liability resulting therefrom.
7. Description of airway bill. (1) The airway bill shall be made out by the
consignor in three original parts.
(2) The first part shall be marked “for
the carrier”; it shall be signed by the consignor. The second part shall be
marked “for the consignee”; it shall be signed by the consignor and by the
carrier. The third part shall be signed by the carrier who shall hand it to the
consignor after the cargo has been accepted.
(3) The signature of the carrier and
that of the consignor may be printed or stamped.
(4) If, at the
request of the consignor, the carrier makes out the airway bill, the carrier
shall be deemed, subject to proof to the contrary, to have done so on behalf of
the consignor.
8. Documentation for multiple
packages.When there is more than one
package:---
(a) the
carrier of cargo has the right to require the consignor to make out separate
air way bills;
(b) the
consignor has the right to require the carrier to deliver separate cargo receipts
when the other means referred to in paragraph 2 of rule 4 are used.
9. Non-compliance with documentary
requirements. Non-compliance with the provisions of rules 4 to 8
shall not affect the existence or the validity of the contract of carriage,
which shall, nonetheless, be subject to the rules of this Convention including
those relating to limitation of liability.
10. Responsibility for particulars
of documentation. (1) The consignor is responsible for the correctness
of the particulars and statements relating to the cargo inserted by it or on
its behalf in the airway bill or furnished by it or on its behalf to the
carrier for insertion in the cargo receipt or for insertion in the record
preserved by the other means referred to in paragraph 2 of rule 4. The
foregoing shall also apply where the person acting on behalf of the consignor
is also the agent of the carrier.
(2) The consignor shall indemnify the
carrier against all damage suffered by it, or by any other person to whom the
carrier is, liable, by reason of the irregularity, incorrectness or
incompleteness of the particulars and statements furnished by the consignor or
on its behalf.
(3) Subject to the provisions of
paragraphs 1 and 2 of this rule, the carrier shall indemnify the consignor
against all damage suffered by it, or by any other person to whom the consignor
is liable, by reason of the irregularity, incorrectness or incompleteness of
the particulars and statements inserted by the carrier or on its behalf in the
cargo receipt or in the record preserved by the other means referred to in
paragraph 2 of rule 4.
11. Evidentiary value of
documentation. (1) The airway bill or the cargo receipt is prima
facie evidence of the conclusion of the contract, of the acceptance of the
cargo and of the conditions of carriage mentioned therein.
(2) Any statements in the airway bill
or the cargo receipt 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 airway bill
or the cargo receipt to have been, checked by it in the presence of the
consignor, or relate to the apparent condition of the cargo.
12. Right of disposition of cargo. (1) Subject to its liability to carry out all its
obligations under the contract of carriage, the consignor has the right to
dispose of the cargo by withdrawing it at the airport of departure or
destination, or by stopping it in the course of the journey on any landing, or
by calling for it to be delivered at the place of destination or in the course
of the journey to a person other than the consignee originally designated, or
by requiring it to be returned to the airport of departure. The consignor must
not exercise this right of disposition in such a way as to prejudice the
carrier or other consignors and must reimburse any expenses occasioned by the
exercise of this right.
(2) If it is impossible to carry out the
instructions of the consignor, the carrier must so inform the consignor
forthwith.
(3) If the carrier carries out the
instructions of the consignor for the disposition of the cargo without
requiring the production of the part of the air waybill or the cargo receipt
delivered to the latter, the carrier will be liable, without prejudice to its
right of recovery from the consignor, for any damage which may be caused
thereby to any person who is lawfully in possession of that part of the air
waybill or the cargo receipt.
(4) The right conferred on the
consignor ceases at the moment when that of the consignee begins in accordance
with rule 13. Nevertheless, if the consignee declines to accept the cargo, or
cannot be communicated with, the consignor resumes its right of disposition.
13. Delivery of the cargo. (1) Except when the consignor has exercised its right
under rule 12, the consignee is entitled, on arrival of the cargo at the place
of destination, to require the carrier to deliver the cargo to it, on payment
of the charges due and on complying with the conditions of carriage.
(2) Unless it is otherwise agreed, it
is the duty of the carrier to give notice to the consignee as soon as the cargo
arrives.
(3) If the carrier admits the loss of
the cargo, or if the cargo has not arrived at the expiration of seven days
after the date on which it ought to have arrived, the consignee is entitled to
enforce against the carrier the rights which flow from the contract of
carriage.
14. Enforcement of the rights of
consignor and consignee. The consignor and the consignee can respectively
enforce all the rights given to them by rules 12 and 13, each in its own name,
whether it is acting in its own interest or in the interest of another,
provided that it carries out the obligations imposed by the contract of
carriage.
15. Relations of
consignor and consignee or mutual relations of third parties. (1) Rules 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 rules 12, 13 and
14 can only be varied by express provision in the air waybill or the cargo
receipt.
(3) Nothing in these rules prevents the
issue of a negotiable airway bill:
Provided that an electronic airway bill
shall be deemed to be a negotiable instrument as defined in section 13 of the
Negotiable Instruments Act, 1881 (XXVI of 1881) and may be dealt with in any
manner as a paper air waybill and the Electronic Transactions Ordinance 2002
shall apply to such electronic air waybill notwithstanding section 31(1)(a) of
the Electronic Transactions Ordinance 2002.
16. Formalities of customs, police
or other public authorities.
(1) The consignor must
furnish such information and such documents as are necessary to meet the
formalities of customs, police and any other public authorities before the
cargo can be delivered to the consignee. The consignor is liable to the carrier
for any damage occasioned by the absence, insufficiency or irregularity of any
such information or documents, unless the damage is due to the fault of the
carrier, its servants or agents.
(2) The carrier is under no obligation
to enquire into the correctness or sufficiency of such information or
documents.
CHAPTER III
LIABILITY OF THE CARRIER AND EXTENT OF COMPENSATION
FOR DAMAGE
17. Death and injury of passengers -
damage to baggage. (1) The carrier is liable for damage sustained in
case of death or bodily injury of a passenger upon condition only that the
accident which caused the death or injury took place on board the aircraft or
in the course of any of the operations of embarking or disembarking.
(2) The carrier is liable for damage
sustained in case of destruction or loss of, or of damage to, checked baggage
upon condition only that the event which caused the destruction, loss or damage
took place on board the aircraft or during any period within which the checked
baggage was in the charge of the carrier. However, the carrier is not liable if
and to the extent that the damage resulted from the inherent defect, quality or
vice of the baggage. In the case of unchecked baggage, including personal
items, the carrier is liable if the damage resulted from its fault or that of
its servants or agents.
(3) If the carrier
admits the loss of the checked baggage, or if the checked baggage has not
arrived at the expiration of twenty-one days after the date on which it ought
to have arrived, the passenger is entitled to enforce against the carrier the
rights which flow from the contract of carriage.
(4) Unless otherwise specified, in this
Schedule the term “baggage” means both checked baggage and unchecked baggage.
18. Damage to cargo. (1) The carrier is liable for damage sustained in the
event of the destruction or loss of, or damage to, cargo upon condition only
that the event which caused the damage so sustained took place during the
carriage by air.
(2) However, the carrier is not liable
if and to the extent it proves that the destruction, or loss of, or damage to,
the cargo resulted from one or more of the following:---
(a) inherent
defect, quality or vice of that cargo;
(b)
defective packing of that cargo performed by a person other than the carrier or
its servants or agents;
(c) an act
of war or an armed conflict;
(d) an act
of public authority carried out in connection with the entry, exit or transit
of the cargo.
(3) The carriage by air within the
meaning of paragraph 1 of this rule comprises the period during which the cargo
is in the charge of the carrier.
(4) The period of the carriage by air
does not extend to any carriage by land, by sea or by inland waterway performed
outside an airport. If, however, such carriage takes place in the performance
of a contract for carriage by air, for the purpose of loading, delivery or
transshipment, any damage is presumed, subject to proof to the contrary, to
have been the result of an event which took place during the carriage by air.
If a carrier, without the consent of the consignor, substitutes carriage by
another mode of transport for the whole or part of a carriage intended by the
agreement between the parties to be carriage by air, such carriage by another
mode of transport is deemed to be within the period of carriage by air.
19. Delay. The carrier is liable for damage occasioned by delay
in the carriage by air of passengers, baggage or cargo. Nevertheless, the
carrier shall not be liable for damage occasioned by delay if it proves that it
and its servants and agents took all measures that could reasonably be required
to avoid the damage or that it was impossible for it or them to take such
measures.
20. Exoneration. If the carrier proves that the damage was caused or
contributed to by the negligence or other wrongful act or omission of the
person claiming compensation, or the person from whom he or she derives his or
her rights, the carrier shall be wholly or partly exonerated from its liability
to the claimant to the extent that such negligence or wrongful act or omission
caused or contributed to the damage. When by reason of death or injury of a
passenger compensation is claimed by a person other than the passenger, the
carrier shall likewise be wholly or partly exonerated from its liability to the
extent that it proves that the damage was caused or contributed to by the
negligence or other wrongful act or omission of that passenger. This rule
applies to all the liability provisions in this Schedule, including paragraph 1
of rule 21.
21. Compensation in case of death or
injury of passengers. (1) For damages arising under paragraph 1 of rule 17
not exceeding 100,000 Special Drawing Rights for each passenger, the carrier
shall not be able to exclude or limit its liability.
(2) The carrier shall not be liable for
damages arising under paragraph 1 of rule 17 to the extent that they exceed for
each passenger 100,000 Special Drawing Rights if the carrier proves that:---
(a) such
damage was not due to the negligence or other wrongful act or omission of the
carrier or its servants or agents; or
(b) such
damage was solely due to the negligence or other wrongful act or omission of a
third party.
22. Limits of liability in relation
to delay, baggage and cargo. (1) In the case of damage caused by delay as
specified in rule 19 in the carriage of persons, the liability of the carrier
for each passenger is limited to 4,150 Special Drawing Rights.
(2) In the carriage of baggage, the
liability of the carrier in the case of destruction, loss, damage or delay is
limited to 1,000 Special Drawing Rights for each passenger unless the passenger
has made, at the time when the checked baggage was handed over to the carrier,
a special declaration of interest in delivery at destination and has paid a
supplementary sum if the case so requires. In that case the carrier will be
liable to pay a sum not exceeding the declared sum, unless it proves that the
sum is greater than the passenger’s actual interest in delivery at destination.
(3) In the carriage of cargo, the
liability of the carrier in the case of destruction, loss, damage or delay is
limited to a sum of 17 Special Drawing Rights per 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 it proves that
the sum is greater than the consignor’s actual interest in delivery at
destination.
(4) In the case of
destruction, loss, damage or delay of part of the cargo, or of any object
contained therein, the weight to be taken into consideration in determining the
amount to which the carrier’s liability is limited shall be only the total
weight of the package or packages concerned. Nevertheless, when the
destruction, loss, damage or delay of a part of the cargo, or of an object
contained therein, affects the value of other packages covered by the same air
waybill, or the same receipt or, if they were not issued, by the same record
preserved by the other means referred to in paragraph 2 of rule 4, the total
weight of such package or packages shall also be taken into consideration in
determining the limit of liability.
(5) The foregoing provisions of
paragraphs 1 and 2 of this rule shall not apply if it is proved that the damage
resulted from an act or omission of the carrier, its servants or agents, done
with intent to cause damage or recklessly and with knowledge that damage would
probably result:---
Provided that, in the case of such act
or omission of a servant or agent, it is also proved that such servant or agent
was acting within the scope of its employment.
(6) The limits prescribed in rule 21
and in this rule 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, including interest. The
foregoing provision shall not apply if the amount of the damages awarded,
excluding court costs and other expenses of the litigation, does not exceed the
sum which the carrier has offered in writing to the plaintiff within a period of
six months from the date of the occurrence causing the damage, or before the
commencement of the action, if that is later.
23. Conversion of monetary units.(1) The sums mentioned in terms of special Drawing
Right in this Schedule 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 State Party which is a Member of the International Monetary
Fund, shall be calculated in accordance with the method of valuation applied by
the International Monetary Fund, in effect at the date of the judgment, for its
operations and transactions. The value of a national currency, in terms of the
Special Drawing Right, of a State Party which is not a Member of the
International Monetary Fund, shall be calculated in a manner determined by that
State.
(2) Nevertheless, those States which
are not Members of the International Monetary Fund and whose law does not
permit the application of the provisions of paragraph 1 of this rule may, at
the time of ratification or accession or at any time thereafter, declare that
the limit of liability of the carrier prescribed in rule 21 is fixed at a sum
of 1,500,000 monetary units per passenger in judicial proceedings in their
territories; 62,500 monetary units per passenger with respect to paragraph 1 of
rule 22; 15,000 monetary units per passenger with respect to paragraph 2 of
rule 22; and 250 monetary units per kilogramme with respect
to paragraph 3 of rule 22. This monetary unit corresponds to sixty-five and a
half milligrammes of gold of millesimal fineness nine hundred. These sums may
be converted into the national currency concerned in round figures. The
conversion of these sums into national currency shall be made according to the
law of the State concerned.
(3) The calculation mentioned in the
last sentence of paragraph 1 of this rule and the conversion method mentioned
in paragraph 2 of this rule shall be made in such manner as to express in the
national currency of the State Party as far as possible the same real value for
the amounts in rules 21 and 22 as would result from the application of the
first three sentences of paragraph 1 of this rule. States Parties shall
communicate to the depositary the manner of calculation pursuant to paragraph 1
of this rule, or the result of the conversion in paragraph 2 of this rule as
the case may be, when depositing an instrument of ratification, acceptance, approval
of or accession to this Schedule and whenever there is a change in either.
24. Review of limits.(1) Without prejudice to the provisions of rule 25 of
this Schedule and subject to paragraph 2 below, the limits of liability
prescribed in rules 21, 22 and 23 shall be reviewed by the Depositary at
five-year intervals, the first such review to take place at the end of the
fifth year following the date of entry into force of the Convention, or if the
Convention does not enter into force within five years of the date it is first
open for signature, within the first year of its entry into force, by reference
to an inflation factor which corresponds to the accumulated rate of inflation
since the previous revision or in the first instance since the date of entry
into force of the Convention. The measure of the rate of inflation to be used
in determining the inflation factor shall be the weighted average of the annual
rates of increase or decrease in the Consumer Price Indices of the States whose
currencies comprise the Special Drawing Right mentioned in paragraph 1 of rule
23.
(2) If the review referred to in the
preceding paragraph concludes that the inflation factor has exceeded 10 per
cent, the Depositary shall notify States Parties of a revision of the limits of
liability. Any such revision shall become effective six months after its
notification to the States Parties. If within three months after its
notification to the States Parties a majority of the States Parties register
their disapproval, the revision shall not become effective and the Depositary
shall refer the matter to a meeting of the States Parties. The Depositary shall
immediately notify all States Parties of the coming into force of any revision.
(3) Notwithstanding paragraph 1 of this
rule, the procedure referred to in paragraph 2 of this rule shall be applied at
any time provided that one-third of the States Parties express a desire to that
effect and upon condition that the inflation factor referred to in paragraph 1
has exceeded 30 percent since the previous revision or since the date of entry
into force of this Convention if there has been no previous revision.
Subsequent reviews using the procedure described in paragraph 1 of this rule
will take place at five-year intervals starting at the end of the fifth year
following the date of the reviews under the present paragraph.
25. Stipulation on
limits. A carrier may stipulate that the contract of carriage
shall be subject to higher limits of liability than those provided for in this
Schedule or to no limits of liability whatsoever.
26. Invalidity of contractual
provisions. Any provision tending to relieve the carrier of
liability or to fix a lower limit than that which is laid down in this Schedule
shall be null and void, but the nullity of any such provision does not involve
the nullity of the whole contract, which shall remain subject to the provisions
of this Schedule.
27. Freedom to contract. Nothing contained in this Schedule shall prevent the
carrier from refusing to enter into any contract of carriage, from waiving any
defences available under the Schedule, or from laying down conditions which do
not conflict with the provisions of this Schedule.
28. Advance payments. In the case of aircraft accidents resulting in death
or injury of passengers, the carrier shall, if required by its national law,
make advance payments without delay to a natural person or persons who are
entitled to claim compensation in order to meet the immediate economic needs of
such persons. Such advance payments shall not constitute recognition of
liability and may be offset against any amounts subsequently paid as damages by
the carrier.
29. Basis of claims. In the carriage of passengers, baggage and cargo, any
action for damages, however founded, whether under this Schedule or in contract
or in tort or otherwise, can only be brought subject to the conditions and such
limits of liability as are set out in this Schedule without prejudice to the
question as to who are the persons who have the right to bring suit and what
are their respective rights. In any such action, punitive, exemplary or any
other non-compensatory damages shall not be recoverable.
30. Servants, agents Aggregation
of claims. (1) If an action is brought against a servant or
agent of the carrier arising out of damage to which this Schedule relates, such
servant or agent, if they prove that they acted within the scope of their
employment, shall be entitled to avail themselves of the conditions and limits
of liability which the carrier itself is entitled to invoke under this
Schedule.
(2) The aggregate of the amounts
recoverable from the carrier, its servants and agents, in that case, shall not
exceed the said limits.
(3) Save in respect of the carriage of
cargo, the provisions of paragraphs 1 and 2 of this rule 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.
31. Timely notice
of complaints. (1) Receipt by the person entitled to delivery of
checked baggage or cargo without complaint is prima facie evidence that
the same has been delivered in good condition and in accordance with the
document of carriage or with the record preserved by the other means referred
to in paragraph 2 of rule 3 and paragraph 2 of rule 4.
(2) In the case of damage, the person
entitled to delivery must complain to the carrier forthwith after the discovery
of the damage, and, at the latest, within seven days from the date of receipt
in the case of checked baggage and fourteen days from the date of receipt in
the case of cargo. In the case of delay, the complaint must be made at the
latest within twenty-one days from the date on which the baggage or cargo have
been placed at his or her disposal.
(3) Every complaint must be made in
writing and given or dispatched within the times aforesaid.
(4) If no complaint is made within the
times aforesaid, no action shall lie against the carrier, save in the case of
fraud on its part.
32. Death of person liable. In
the case of the death of the person liable, an action for damages lies in
accordance with the terms of this Schedule against those legally representing
his or her estate.
33. Jurisdiction. (1) An action for damages must be brought, at the
option of the plaintiff, in the territory of one of the States Parties, either
before the court of the domicile of the carrier or of its principal place of
business, or where it has a place of business through which the contract has
been made or before the court at the place of destination.
(2) In respect of damage resulting from
the death or injury of a passenger, an action may be brought before one of the
courts mentioned in paragraph 1 of this rule, or in the territory of a State
Party in which at the time of the accident the passenger has his or her
principal and permanent residence and to or from which the carrier operates
services for the carriage of passengers by air, either on its own aircraft or
on another carrier’s aircraft pursuant to a commercial agreement, and in which
that carrier conducts its business of carriage of passengers by air from
premises leased or owned by the carrier itself or by another carrier with which
it has a commercial agreement.
(3) For the purposes of paragraph 2,---
(a) “commercial
agreement” means an agreement, other than an agency agreement, made between
carriers and relating to the provision of their joint services for carriage of
passengers by air;
(b) “principal
and permanent residence” means the one fixed and permanent abode of the
passenger at the time of the accident. The nationality of the
passenger shall not be the determining factor in this regard.
34. Arbitration. (1) Subject to the provisions of this rule, the
parties to the contract of carriage for cargo may stipulate that any dispute
relating to the liability of the carrier under this Schedule shall be settled
by arbitration. Such agreement shall be in writing.
(2) The arbitration proceedings shall,
at the option of the claimant, take place within one of the jurisdictions
referred to in rule 33.
(3) The arbitrator or arbitration
tribunal shall apply the provisions of this Schedule.
(4) The provisions of paragraphs 2 and
3 of this rule shall be deemed to be part of every arbitration clause or
agreement, and any term of such clause or agreement which is inconsistent
therewith shall be null and void.
35. Limitation of actions. The right to damages shall be extinguished if an
action is not brought within a period of two years, reckoned from the date of
arrival at the destination, or from the date on which the aircraft ought to
have arrived, or from the date on which the carriage stopped.
36. Successive carriage. (1) In the case of carriage to be performed by
various successive carriers and falling within the definition set out in
paragraph 3 of rule 1, each carrier which accepts passengers, baggage or cargo
is subject to the rules set out in this Schedule and is deemed to be one of the
parties to the contract of carriage in so far as the contract deals with that
part of the carriage which is performed under its supervision.
(2) In the case of carriage of this
nature, the passenger or any person entitled to compensation in respect of him
or her can take action only against the carrier which performed the carriage
during which the accident or the delay occurred, save in the case where, by express
agreement, the first carrier has assumed liability for the whole journey.
(3) As regards baggage or cargo, the
passenger or consignor will have a right of action against the first carrier,
and the passenger or consignee who is entitled to delivery will have a right of
action against the last carrier, and further, each may take action against the
carrier which performed the carriage during which the destruction, loss, damage
or delay took place. These carriers will be jointly and severally liable to the
passenger or to the consignor or consignee.
37. Right of recourse against third
parties. Nothing in this Schedule shall prejudice the question
whether a person liable for damage in accordance with its provisions has a
right of recourse against any other person.
COMBINED CARRIAGE
38. Combined carriage. (1) In the case of combined carriage performed partly
by air and partly by any other mode of carriage, the provisions of this
Schedule shall, subject to paragraph 4 of rule 18, apply only to the carriage
by air, provided that the carriage by air falls within the terms of rule 1.
(2) Nothing in this Schedule shall
prevent the parties in the case of combined carriage from inserting in the
document of air carriage conditions relating to other modes of carriage,
provided that the provisions of this Schedule are observed as regards the
carriage by air.
CHAPTER V
CARRIAGE BY AIR PERFORMED BY A PERSON OTHER THAN THE
CONTRACTING CARRIER
39. Contracting carrier - Actual
carrier. The provisions of this Chapter apply when a person
(hereinafter referred to as “the contracting carrier”) as a principal makes a
contract of carriage governed by this Schedule with a passenger or consignor or
with a person acting on behalf of the passenger or consignor, and another
person (hereinafter referred to as “the actual carrier”) performs, by virtue of
authority from the contracting carrier, the whole or part of the carriage, but
is not with respect to such part a successive carrier within the meaning of
this Schedule. Such authority shall be presumed in the absence of proof to the
contrary.
40. Respective liability of
contracting and actual carriers. If an actual carrier performs the whole or part of
carriage which, according to the contract referred to in rule 39, is governed
by this Schedule, both the contracting carrier and the actual carrier shall,
except as otherwise provided in this Chapter, be subject to the rules of this
Schedule, the former for the whole of the carriage contemplated in the
contract, the latter solely for the carriage which it performs.
41. Mutual liability. (1) The acts and omissions of the actual carrier and
of its servants and agents acting within the scope of their employment shall,
in relation to the carriage performed by the actual carrier, be deemed to be
also those of the contracting carrier.
(2) The acts and omissions of the
contracting carrier and of its servants and agents acting within the scope of
their employment shall, in relation to the carriage performed by the actual
carrier, be deemed to be also those of the actual carrier. Nevertheless, no
such act or omission shall subject the actual carrier to liability exceeding
the amounts referred to in rules 21, 22, 23 and 24. Any special agreement under
which the contracting carrier assumes obligations not imposed
by this Schedule or any waiver of rights or defences conferred by this Schedule
or any special declaration of interest in delivery at destination contemplated
in rule 22 shall not affect the actual carrier unless agreed to by it.
42. Addressee of complaints and
instructions. Any complaint to be made or instruction to be given
under this Schedule to the carrier shall have the same effect whether addressed
to the contracting carrier or to the actual carrier. Nevertheless, instructions
referred to in rule 12 shall only be effective if addressed to the contracting
carrier.
43. Servants and agents. In relation to the carriage performed by the actual
carrier, any servant or agent of that carrier or of the contracting carrier
shall, if they prove that they acted within the scope of their employment, be
entitled to avail themselves of the conditions and limits of liability which
are applicable under this Schedule to the carrier whose servant or agent they
are, unless it is proved that they acted in a manner that prevents the limits
of liability from being invoked in accordance with this Schedule.
44. Aggregation of damages. In relation to the carriage performed by the actual
carrier, the aggregate of the amounts recoverable from that carrier and the
contracting carrier, and from their servants and agents acting within the scope
of their employment, shall not exceed the highest amount which could be awarded
against either the contracting carrier or the actual carrier under this
Schedule, but none of the persons mentioned shall be liable for a sum in excess
of the limit applicable to that person.
45. Addressee of claims. In relation to the carriage performed by the actual
carrier, an action for damages may be brought, at the option of the plaintiff,
against that carrier or the contracting carrier, or against both together or
separately. If the action is brought against only one of those carriers, that
carrier shall have the right to require the other carrier to be joined in the
proceedings.
46. Additional jurisdiction. Any action for damages contemplated in rule 45 must
be brought, at the option of the plaintiff, in the territory of one of the
States Parties, either before a court in which an action may be brought against
the contracting carrier, as provided in rule 33, or before the court having
jurisdiction at the place where the actual carrier has its domicile or its
principal place of business.
47. Invalidity of contractual
provisions. Any contractual provision
tending to relieve the contracting carrier or the actual carrier of liability
under this Chapter or to fix a lower limit than that which is applicable
according to this Chapter shall be null and void, but the nullity of any such
provision does not involve the nullity of the whole contract, which shall
remain subject to the provisions of this Chapter.
48. Mutual relations of contracting
and actual carriers. Except as provided in rule 45, nothing in this
Chapter shall affect the rights and obligations of the carriers between
themselves, including any right of recourse or indemnification.
OTHER PROVISIONS
49. Mandatory application. Any clause contained in the contract of carriage and
all special agreements entered into before the damage occurred by which the
parties purport to infringe the rules laid down by this Schedule, whether by
deciding the law to be applied, or by altering the rules as to jurisdiction,
shall be null and void.
50.
Insurance. States Parties shall
require their carriers to maintain adequate insurance covering their liability
under this Schedule. A carrier may be required by the State Party into which it
operates to furnish evidence that it maintains adequate insurance covering its
liability under this Schedule.
51. Carriage performed in
extraordinary circumstances. The provisions of rules 3 to 5, 7 and 8 relating to
the documentation of carriage shall not apply in the case of carriage performed
in extraordinary circumstances outside the normal scope of a carrier’s
business.
52. Definition of days. The expression “days” when used in this Schedule
means calendar days, not working days.
CHAPTER VII
FINAL CLAUSES
53. Signature, Ratification and
Entry into Force. (1) This Convention shall be open for signature in
(2) The Convention shall similarly be
open for signature by Regional Economic Integration Organizations. For the
purpose of the Convention, a “Regional Economic Integration Organization” means
any organization which is constituted by sovereign States of a given region
which has competence in respect of certain matters governed by this Convention
and has been duly authorized to sign and to ratify, accept, approve or accede
to this Convention. A reference to a “State Party” or “States Parties” in this
Convention, otherwise than in paragraph 2 of Article 1, paragraph 1(b) of
Article 3, paragraph (b) of Article 5, Articles 23, 33, 46 and paragraph (b) of
Article 57, applies equally to a Regional Economic Integration Organization.
For the purpose of Article 24, the reference to “a majority
of the States Parties” and “one-third of the States Parties” shall not apply to
the Regional Economic Integration Organization.
(3) This Convention shall be subject to
ratification by States and by Regional Economic Integration Organizations which
have changed it.
(4) Any States or Regional Economic
Integration Organization which does not sign this Convention may accept,
approve or accede to it any time.
(5) Instruments of ratification,
acceptance, approval or accession shall be deposited with the International
Civil Aviation Organization, which is hereby designated the Depositary.
(6) The Convention shall enter into
force on the sixtieth day following the date of deposit of the thirtieth
instrument of ratification, acceptance, approval or accession with the
Depository between the States which have deposited such instrument. An
instrument deposited by the Regional Economic Integration Organization shall
not be counted for the purpose of this paragraph.
(7) For the States and for other
Regional Economic Integration Organizations, this Convention shall take effect
sixty days following the date of deposit of the instrument of ratification,
acceptance, approval or accession.
(8) The Depository shall promptly
notify all signatories and States Parties of:---
(a) each
signature of this Convention and date thereof;
(b) each
deposit of an instrument of ratification, acceptance, approval or accession and
date thereof;
(c) the date
and entry into force of this Convention;
(d) the date
and entry into force of any revision of the limits of liability established
under this Convention;
(e) any
denunciation under Article 54.
54. Denunciation, (1) Any State Party may denounce this Convention by
written notification to the Depositary.
(2) Denunciation shall take effect one
hundred and eighty days following the date on which notification is received by
the Depository.
55. Relationship with other
(1) between State Parties to this
convention by virtue of these States commonly being party to
(a) the Convention for the Unification of Certain rules
relating to International Carriage by Air signed at Warsaw on 12 October, 1929
(hereinafter called the Warsaw Convention);
(b) the
Protocol to amend the Convention for the Unification of Certain Rules relating
to International Carriage by Air signed at Warsaw on 12 October, 1929 done at
The Hague on 28 September, 1955 (hereinafter called, The Hague Protocol);
(c) the
Convention, Supplementary to the Warsaw Convention for the Unification of
Certain rules relating to International Carriage by Air performed by a person
other than the Contracting Carrier, signed at Guadalajara on 18 September, 1961
(hereinafter called, the Guadalajara Convention);
(d) the
Protocol to amend the Convention for the Unification of Certain rules relating
to International Carriage by Air signed at Warsaw on 12 October, 1929 as
amended by the Protocol done at The Hague on 28 September, 1955, signed at
Guatemala City on March 8, 1971 (hereinafter called, The Guatemala City
Protocol);
(e) Additional
Protocol Nos.1 to 3 and Montreal Protocol No.4 to amend the Warsaw Convention
as amended by The Hague Protocol or the Warsaw Convention as amended both The
Hague Protocol and the Guatemala City Protocol, signed at Montreal on 25
September 1975 (hereinafter called the Montreal Protocols); or
(2) within the territory of any single
State Party to this Convention by virtue of that State being Party to one or
more of the instruments referred to in sub-paragraph (a) to (e) above.
56. States with more than one System
of Law. (1) If a State has two or more territorial units in
which different systems of law are applicable in relation to matters dealt with
in this Convention, it may be at the time of signature, ratification,
acceptance, approval, or accession declare that this Convention shall extend to
all its territorial units or only one or more of them and may modify this
declaration by submitting another declaration at any time.
(2) Any such declaration shall be
notified to the Depository and shall state expressly the territorial units to
which the Convention applies.
(3) In relation to a State Party which
has made such a declaration:---
(a) reference
in Article 23 to “national currency” shall be construed as referring to the
currency of the relevant territorial unit of that State; and
(b) the reference in Article 28 to “national law” shall
be construed as referring to the law of the relevant territorial unit of that
State;
57. Reservations. No reservation may be made to this Convention except
that a State Party may at any time declare by a notification addressed to the
Depository that this Convention shall not apply to:---
(a)
international carriage by air performed and operated directly by that State
Party for non-commercial purposes in respect to its functions and duties as a
sovereign State; and/or
(b) the
carriage of persons, cargo and baggage for its military authorities on aircraft
registered in or leased by that State Party, the whole capacity of which has, been
reserved by or on behalf of such authorities.
THE FIFTH SCHEDULE
[See section 5]
APPLICABLE RULES RELATING TO CARRIAGE BY AIR WHICH IS
NOT INTERNATIONAL
RULES
CHAPTER I
GENERAL PROVISONS
1. Scope of application. (1) This Schedule applies to all carriage of
passengers, baggage and cargo performed by aircraft for reward.
(2) This Schedule applies also to
carriage as set out in Chapter-V, subject to the terms contained therein.
2. Carriage performed by State and
carriage of postal items. These rules do not apply to the carriage of postal
packets performed under terms of any international Postal Convention or of
postal packets as defined under any law for the time being in force in
DOCUMENTATION AND DUTIES OF THE PARTIES RELATING TO THE
CARRIAGE OF PASSENGERS, BAGGAGE AND CARGO
3. Passengers and baggage. (1) In respect of carriage of passengers, an
individual or collective document of carriage shall be delivered containing an
indication of the places of departure and destination.
(2) Any other means which preserves the
information indicated in paragraph 1 may be substituted for the delivery of the
document referred to in that paragraph. If any such other means is used, the
carrier shall offer to deliver to the passenger a written statement of the
information so preserved.
(3) The carrier shall deliver to the
passenger a baggage identification tag for each piece of checked baggage.
(4) The passenger shall be given
written notice to the effect that where this Schedule is applicable it governs
and may limit the liability of carriers in respect of death or injury and for
destruction or loss of, or damage to, baggage, and for delay.
(5) Non-compliance with the provisions
of the foregoing paragraphs shall not affect the existence or the validity of
the contract of carriage, which shall, nonetheless, be subject to the rules of
this Schedule including those relating to limitation of liability.
4. Cargo. (1) In respect of the carriage of cargo, an airway
bill shall be delivered.
(2) Any other means which preserves a
record of the carriage to be performed may be substituted for the delivery of
an airway bill. If such other means are used, the carrier shall, if so
requested by the consignor, deliver to the consignor a cargo receipt permitting
identification of the consignment and access to the information contained in
the record preserved by such other means.
5. Contents of air waybill or cargo
receipt. The airway bill or the cargo receipt shall include:
(a) an
indication of the places of departure and destination; and
(b) an
indication of the weight of the consignment.
6. Document
relating to the nature of the cargo. The consignor may be required, if necessary, to meet
the formalities of customs, police and similar public authorities, to deliver a
document indicating the nature of the cargo. This provision creates for the
carrier no duty, obligation or liability resulting therefrom.
7. Description of airway bill. (1) The air waybill shall be made out by the
consignor in three original parts.
(2) The first part shall be marked “for
the carrier”; it shall be signed by the consignor. The second part shall be
marked “for the consignee”; it shall be signed by the consignor and by the
carrier. The third part shall be signed by the carrier who shall hand it to the
consignor after the cargo has been accepted.
(3) The signature of the carrier and
that of the consignor may be printed or stamped.
(4) If, at the request of the
consignor, the carrier makes out the airway bill, the carrier shall be deemed,
subject to proof to the contrary, to have done so on behalf of the consignor.
8. Documentation for multiple
packages. When there is more than one package:---
(a) the
carrier of cargo has the right to require the consignor to make out separate
airway bills;
(b) The
consignor has the right to require the carrier to deliver separate cargo
receipts when the other means referred to in paragraph 2 of Rule 4 are used.
9. Non-compliance with documentary
requirements. Non-compliance with the provisions of Rules 4 to 8
shall not affect the existence or the validity of the contract of carriage,
which shall, nonetheless, be subject to the rules of this Convention including
those relating to limitation of liability.
10. Responsibility for particulars
of documentation. (1) The consignor is responsible for the correctness
of the particulars and statements relating to the cargo inserted by it or on
its behalf in the air way bill or furnished by it or on its behalf to the
carrier for insertion in the cargo receipt or for insertion in the record
preserved by the other means referred to in paragraph 2 of Rule 4. The
foregoing shall also apply where the person acting on behalf of the consignor
is also the agent of the carrier.
(2) The consignor shall indemnify the
carrier against all damage suffered by it, or by any other person to whom the
carrier is liable, by reason of the irregularity, incorrectness or
incompleteness of the particulars and statements furnished by the consignor or
on its behalf.
(3) Subject to the
provisions of paragraphs 1 and 2 of this Rule, the carrier shall indemnify the
consignor against all damage suffered by it, or by any other person to whom the
consignor is liable, by reason of the irregularity, incorrectness or
incompleteness of the particulars and statements inserted by the carrier or on
its behalf in the cargo receipt or in the record preserved by the other means
referred to in paragraph 2 of Rule 4.
11. Evidentiary value of
documentation. (1) The air waybill or the cargo receipt is prima
facie evidence of the conclusion of the contract, of the acceptance of the
cargo and of the conditions of carriage mentioned therein
(2) Any statements in the air waybill
or the cargo receipt relating to the weight, dimensions and 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 or the cargo
receipt to have been, checked by it in the presence of the consignor, or relate
to the apparent condition of the cargo.
12. Right of disposition of cargo. (1) Subject to its liability to carry out all its
obligations under the contract of carriage, the consignor has the right to
dispose of the cargo by withdrawing it at the airport of departure or
destination, or by stopping it in the course of the journey on any landing, or
by calling for it to be delivered at the place of destination or in the course
of the journey to a person other than the consignee originally designated, or
by requiring it to be returned to the airport of departure. The consignor must
not exercise this right of disposition in such a way as to prejudice the
carrier or other consignors and must reimburse any expenses occasioned by the
exercise of this right.
(2) If it is impossible to carry out
the instructions of the consignor, the carrier must so inform the consignor
forthwith.
(3) If the carrier carries out the
instructions of the consignor for the disposition of the cargo without
requiring the production of the part of the airway bill or the cargo receipt
delivered to the latter, the carrier will be liable, without prejudice to its
right of recovery from the consignor, for any damage which may be caused
thereby to any person who is lawfully in possession of that part of the air way
bill or the cargo receipt.
(4) The right conferred on the
consignor ceases at the moment when that of the consignee begins in accordance
with Rule 13. Nevertheless, if the consignee declines to accept the cargo, or
cannot be communicated with, the consignor resumes its right of disposition.
13. Delivery of the cargo. (1) Except when the consignor has exercised its right
under rule 12, the consignee is entitled, on arrival of the cargo at the place
of destination, to require the carrier to deliver the cargo
to it, on payment of the charges due and on complying with the conditions of
carriage.
(2) Unless it is otherwise agreed, it
is the duty of the carrier to give notice to the consignee as soon as the cargo
arrives.
(3) If the carrier admits the loss of
the cargo, or if the cargo has not arrived at the expiration of seven days
after the date on which it ought to have arrived, the consignee is entitled to
enforce against the carrier the rights which flow from the contract of
carriage.
14. Enforcement of the rights of
consignor and consignee. The consignor and the consignee can respectively
enforce all the rights given to them by Rules 12 and 13, each in its own name,
whether it is acting in its own interest or in the interest of another,
provided that it carries out the obligations imposed by the contract of
carriage.
15. Relations of consignor and
consignee or mutual relations of third Parties. (1) Rules 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 Rules 12, 13 and
14 can only be varied by express provision in the air waybill or the cargo
receipt.
(3) Nothing in these rules prevents the
issue of a negotiable air waybill:---
Provided that an electronic airway bill
shall be deemed to be a Negotiable, Instrument as defined in section 13 of the
Negotiable Instruments Act, 1881 (XXVI of 1881) and may be dealt with in any
manner as a paper airway bill and the Electronic Transactions Ordinance 2002
shall apply to such electronic air waybill notwithstanding section 31(1)(a) of
the Electronic Transactions Ordinance 2002.
16. Formalities of customs, police
or other public authorities.(1) the consignor must furnish such information and
such documents as are necessary to meet the formalities of customs, octroi or
police and any other public authorities before the cargo can be delivered to
the consignee. The consignor is liable to the carrier for any damage occasioned
by the absence, insufficiency or irregularity of any such information or
documents, unless the damage is due to the fault of the carrier, its servants
or agents.
(2) The carrier is under no obligation
to enquire into the correctness or sufficiency of such information or
documents.
LIABILITY OF THE CARRIER AND EXTENT OF COMPENSATION
FOR DAMAGE
17. Death and injury of passengers -
damage to baggage. (1) The carrier is liable for damage sustained in
case of death or bodily injury of a passenger upon condition only that the
accident which caused the death or injury took place on board the aircraft or
in the course of any of the operations of embarking or disembarking.
(2) The carrier is liable for damage
sustained in case of destruction or loss of, or of damage to, checked baggage
upon condition only that the event which caused the destruction, loss or damage
took place on board the aircraft or during any period within which the checked
baggage was in the charge of the carrier. However, the carrier is not liable if
and to the extent that the damage resulted from the inherent defect, quality or
vice of the baggage. In the case of unchecked baggage, including personal
items, the carrier is liable if the damage resulted from its fault or that of
its servants or agents.
(3) If the carrier admits the loss of
the checked baggage, or if the checked baggage has not arrived at the
expiration of twenty-one days after the date on which it ought to have arrived,
the passenger is entitled to enforce against the carrier the rights which flow
from the contract of carriage.
(4) Unless otherwise specified, in this
Schedule the term “baggage” means both checked baggage and unchecked baggage.
18. Damage to cargo. (1) The carrier is liable for damage sustained in the
event of the destruction or loss of, or damage to, cargo upon condition only
that the event which caused the damage so sustained took place during the
carriage by air.
(2) However, the carrier is not liable
if and to the extent it proves that the destruction, or loss of, or damage to,
the cargo resulted from one or more of the following:---
(a) inherent
defect, quality or vice of that cargo;
(b)
defective packing of that cargo performed by a person other than the carrier or
its servants or agents;
(c) an act
of war or an armed conflict;
(d) an act
of public authority carried out in connection with the entry, exit or transit
of the cargo.
(3) The carriage by air within the
meaning of paragraph 1 of this Rule comprises the period during which the cargo
is in the charge of the carrier.
(4) The period of the
carriage by air does not extend to any carriage by land, by sea or by inland
waterway performed outside an airport. If, however, such carriage takes place
in the performance of a contract for carriage by air, for the purpose of
loading, delivery or transshipment, any damage is presumed, subject to proof to
the contrary, to have been the result of an event which took place during the
carriage by air. If a carrier, without the consent of the consignor,
substitutes carriage by another mode of transport for the whole or part of a carriage
intended by the agreement between the parties to be carriage by air, such
carriage by another mode of transport is deemed to be within the period of
carriage by air.
19. Delay. The carrier is liable for damage occasioned by delay
in the carriage by air of passengers, baggage or cargo. Nevertheless, the
carrier shall not be liable for damage occasioned by delay if it proves that it
and its servants and agents took all measures that could reasonably be required
to avoid the damage or that it was impossible for it or them to take such
measures.
20. Exoneration. If the carrier proves that the damage was caused or
contributed to by the negligence or other wrongful act or omission of the
person claiming compensation, or the person from whom he or she derives his or
her rights, the carrier shall be wholly or partly exonerated from its liability
to the claimant to the extent that such negligence or wrongful act or omission
caused or contributed to the damage. When by reason of death or injury of a
passenger compensation is claimed by a person other than the passenger, the
carrier shall likewise be wholly or partly exonerated from its liability to the
extent that it proves that the damage was caused or contributed to by the
negligence or other wrongful act or omission of that passenger. This Rules
applies to all the liability provisions in this Schedule, including paragraph 1
of Rule 21.
21. Compensation in case of death or
injury of passengers. (1) For damages arising under paragraph 1 of Rule 17
not exceeding Rs. 50,00,000/- for each passenger, the carrier shall not be able
to exclude or limit its liability.
(2) The carrier shall not be liable for
damages arising under paragraph 1 of Rule 17 to the extent that they exceed for
each passenger Rs. 50,00,000/- if it is proved that:---
(a) such
damage was not due to the gross negligence, intent to cause damage, willful
misconduct or omission of the carrier or its servants or agents; or
(b) such
damage was solely due to the gross negligence, intent to cause damage, willful
misconduct or omission of a third party.
22. Limits of liability in relation
to delay, baggage and cargo. (1) The carrier is liable for damage occasioned by
delay in the carriage by air of passengers, baggage or cargo to the extent of
the amount of any such damage which may be proved to have been sustained by
reason of such delay or of an amount representing double the sum paid for the
carriage, whichever amount may be smaller:---
Provided that the
carrier may, in special circumstances, by special and separate contract in
writing expressly by drawing specific and highly conspicuous attention of such
a clause exclude, increase or decrease the limit of his liability as above
provided.
(2) In the carriage of baggage, the
liability of the carrier in the case of destruction, loss, or damage is limited
to Rs. 1000 per kilogramme for each passenger unless the passenger has made, at
the time when the checked baggage was handed over to the carrier, a special
declaration of interest in delivery at destination and has paid a supplementary
sum if the case so requires. In that case the carrier will be liable to pay a
sum not exceeding the declared sum, unless it proves that the sum is greater
than the passenger’s actual interest in delivery at destination.
(3) In the carriage of cargo, the
liability of the carrier in the case of destruction, loss, or damage is limited
to a sum of Rs. 1000 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 it proves that the sum is greater than the
consignor’s actual interest in delivery at destination.
(4) In the case of destruction, loss,
or damage of part of the cargo, or of any object contained therein, the weight
to be taken into consideration in determining the amount to which the carrier’s
liability is limited, shall be only the total weight of the package or packages
concerned. Nevertheless, when the destruction, loss, or damage of a part of the
cargo, or of an object contained therein, affects the value of other packages
covered by the same air waybill, or the same receipt or, if they were not
issued, by the same record preserved by the other means referred to in
paragraph 2 of Rule 4, the total weight of such package or packages shall also
be taken into consideration in determining the limit of liability.
(5) The foregoing provisions of
paragraphs 1 and 2 of this Rule shall not apply if it is proved that the damage
resulted from an act or omission of the carrier, its servants or agents, done
as a result of gross negligence, willful misconduct or with intent to cause
damage:---
Provided that, in the case of such act
or omission of a servant or agent, it is also proved that such servant or agent
was acting within the scope of its employment.
(6) The limits prescribed in Rule 21
and in this Rule shall not prevent the court from awarding in addition, the
whole or part of the court costs and of the other expenses of the litigation
incurred by the plaintiff, including interest. The foregoing provision shall
not apply if the amount of the damages awarded, 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 twelve months from the
date of the occurrence causing the damage, or before the commencement of the
action, whichever is later.
23. Review of
limits. Without prejudice to the provisions of Rule 24 of
this Schedule the limits of liability prescribed in Rules 21 and 22 shall be
reviewed by the Federal Government as provided in section 4(5) of this Bill at
five-year intervals.
24. Stipulation on limits. A carrier may stipulate that the contract of carriage
shall be subject to higher limits of liability than those provided for in this
Schedule or to no limits of liability whatsoever.
25. Invalidity of contractual
provisions. Any provision tending to relieve the carrier of
liability or to fix a lower limit than that which is laid down in this Schedule
shall be null and void, but the nullity of any such provision does not involve
the nullity of the whole contract, which shall remain subject to the provisions
of this Schedule.
26. Freedom to contract. Nothing contained in this Schedule shall prevent the
carrier from refusing to enter into any contract of carriage, from waiving any
defences available under the Schedule, or from laying down conditions which do
not conflict with the provisions of this Schedule.
27. Advance payments. In the case of aircraft accidents resulting in death
or injury of passengers, the carrier shall, if required by its national law,
make advance payments without delay to a natural person or persons who are
entitled to claim compensation in order to meet the immediate economic needs of
such persons. Such advance payments shall not constitute a recognition of
liability and may be offset against any amounts subsequently paid as damages by
the carrier.
28. Basis of claims. In the carriage of passengers, baggage and cargo, any
action for damages, however founded, whether under this Schedule or in contract
or in tort or otherwise, can only be brought subject to the conditions and such
limits of liability as are set out in this Schedule without prejudice to the
question as to who are the persons who have the right to bring suit and what
are their respective rights. In any such action, punitive, exemplary or any
other non-compensatory damages shall not be recoverable.
29. Servants, agents - aggregation
of claims. (1) If an action is brought against a servant or
agent of the carrier arising out of damage to which the Schedule relates, such
servant or agent, if they prove that they acted within the scope of their
employment, shall be entitled to avail themselves of the conditions and limits
of liability which the carrier itself is entitled to invoke under this
Schedule.
(2) The aggregate of the amounts
recoverable from the carrier, its servants and agents, in that case, shall not
exceed the said limits.
(3) Save in respect of the carriage of
cargo, the provisions of paragraphs 1 and 2 of this Rule shall not apply if it
is proved that the damage resulted from an act or omission of the servant or
agent done as a result of gross negligence, wilful misconduct or with intent to
cause damage.
30. Timely notice
of complaints. (1) Receipt by the person entitled to delivery of
checked baggage or cargo without complaint is prima facie evidence that
the same has been delivered in good condition and in accordance with the
document of carriage or with the record preserved by the other means referred
to in paragraph 2 of Rule 3 and paragraph 2 of Rule 4.
(2) In the case of damage, the person
entitled to delivery must complain to the carrier forthwith after the discovery
of the damage, and, at the latest, within three days from the date of receipt
in the case of checked 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 have been
placed at his or her disposal.
(3) Every complaint must be made in
writing and given or dispatched within the times aforesaid.
(4) if no complaint is made within the
times aforesaid, no action shall lie against the carrier, save in the case of
fraud on its part.
31. Death of person liable. In the case of the death of the person liable, an
action for damages lies in a accordance with the terms of this Schedule against
those legally representing his or her estate.
32. Arbitration. (1) Subject to the provisions of this Rule, the
parties to the contract of carriage for cargo may stipulate that any dispute
relating to the liability of the carrier under this Schedule shall be settled
by arbitration. Such agreement shall be in writing.
(2) The arbitrator or arbitration
tribunal shall apply the provisions of this Schedule.
(3) The provisions of paragraph 2 of
this Rule shall be deemed to be part of every arbitration clause or agreement,
and any term of such clause or agreement which is inconsistent therewith shall
be null and void.
33. Limitation of actions. The right to damages shall be extinguished if an
action is not brought within a period of two years, reckoned from the date of
arrival at the destination, or from the date on which the aircraft ought to
have arrived, or from the date on which the carriage stopped.
34. Successive carriage. (1) In the case of carriage to be performed by
various successive carriers, each carrier which accepts passengers, baggage or
cargo is subject to the rules set out in this Schedule and is deemed to be one
of the parties to the contract of carriage in so far as the contract deals with
that part of the carriage which is performed under its supervision.
(2) In the case of
carriage of this nature, the passenger or any person entitled to compensation
in respect of him or her can take action only against the carrier which
performed the carriage during which the accident or the delay occurred, save in
the case where, by express agreement, the first carrier has assumed liability
for the whole journey.
(3) As regards baggage or cargo, the
passenger or consignor will have a right of action against the first carrier,
and the passenger or consignee who is entitled to delivery will have a right of
action against the last carrier, and further, each may take action against the
carrier which performed the carriage during which the destruction, loss, damage
or delay took place. These carriers will be jointly and severally liable to the
passenger or to the consignor or consignee.
35. Right of recourse against third
parties. Nothing in this Schedule shall prejudice the question
whether a person liable for damage in accordance with its provisions has a
right of recourse against any other person.
CHAPTER IV
COMBINED CARRIAGE
36. Combined carriage. (1) In the case of combined carriage performed partly
by air and partly by any other mode of carriage, the provisions of this
Schedule shall, subject to paragraph 4 of Rule 18, apply only to the carriage
by air.
(2) Nothing in this Schedule shall
prevent the parties in the case of combined carriage from inserting in the
document of air carriage conditions relating to other modes of carriage,
provided that the provisions of this Schedule are observed as regards the
carriage by air.
CHAPTER V
CARRIAGE BY AIR PERFORMED BY A PERSON OTHER THAN THE
CONTRACTING CARRIER
37. Contracting carrier - actual
carrier. The provisions of this Chapter apply when a person
(hereinafter referred to as “the contracting carrier”) as a principal makes a
contract of carriage governed by this Schedule with a passenger or consignor or
with a person acting on behalf of the passenger or consignor, and another
person (hereinafter referred to as “the actual carrier”) performs, by virtue of
authority from the contracting carrier, the whole or part of the carriage, but
is not with respect to such part a successive carrier within
the meaning of this Schedule. Such authority shall be presumed in the absence
of proof to the contrary.
38. Respective liability of
contracting and actual carriers. If
an actual carrier performs the whole or part of carriage which, according to
the contract referred to in Rule 37, is governed by this Schedule, both the
contracting carrier and the actual carrier shall, except as otherwise provided
in this Chapter, be subject to the rules of this Schedule, the former for the
whole of the carriage contemplated in the contract, the latter solely for the
carriage which it performs.
39. Mutual liability. (1) The acts and omissions of the actual carrier and
of its servants and agents acting within the scope of their employment shall,
in relation to the carriage performed by the actual carrier, be deemed to be
also those of the contracting carrier.
(2) The acts and omissions of the
contracting carrier and of its servants and agents acting within the scope of
their employment shall, in relation to the carriage performed by the actual
carrier, be deemed to be also those of the actual carrier. Nevertheless, no
such act or omission shall subject the actual carrier to liability exceeding
the amounts referred to in Rules 21, 22, and 23. Any special agreement under
which the contracting carrier assumes obligations not imposed by this Schedule
or any waiver of rights or defences conferred by this Schedule or any special
declaration of interest in delivery at destination contemplated in Rule 22
shall not affect the actual carrier unless agreed to by it.
40. Addressee of complaints and
instructions. Any complaint to be made or instruction to be given
under this Schedule to the carrier shall have the same effect whether addressed
to the contracting carrier or to the actual carrier. Nevertheless, instructions
referred to in Rule 12 shall only be effective if addressed to the contracting
carrier.
41. Servants and agents. In relation to the carriage performed by the actual
carrier, any servant or agent of that carrier or of the contracting carrier
shall, if they prove that they acted within the scope of their employment, be
entitled to avail themselves of the conditions and limits of liability which
are applicable under this Schedule to the carrier whose servant or agent they
are, unless it is proved that they acted in a manner that prevents the limits
of liability from being invoked in accordance with this Schedule.
42. Aggregation of damages. In relation to the carriage performed by the actual
carrier, the aggregate of the amounts recoverable from that carrier and the
contracting carrier, and from their servants and agents acting within the scope
of their employment, shall not exceed the highest amount which could be awarded
against either the contracting carrier or the actual carrier under this
Schedule, but none of the persons mentioned shall be liable for a sum in excess
of the limit applicable to that person.
43. Addressee of
claims. In relation to the carriage performed by the actual
carrier, an action for damages may be brought, at the option of the plaintiff,
against that carrier or the contracting carrier, or against both together or
separately. If the action is brought against only one of those carriers, that
carrier shall have the right to require the other carrier to be joined in the
proceedings.
44. Invalidity of contractual
provisions. Any contractual provision tending to relieve the
contracting carrier or the actual carrier of liability under this Chapter or to
fix a lower limit than that which is applicable according to this Chapter shall
be null and void, but the nullity of any such provision does not involve the
nullity of the whole contract, which shall remain subject to the provisions of
this Chapter.
45. Mutual relations of contracting
and actual carriers. Except as provided in Rule 42, nothing in this
Chapter shall affect the rights and obligations of the carriers between
themselves, including any right of recourse or indemnification.
CHAPTER VI
OTHER PROVISIONS
46. Mandatory application. Any clause contained in the contract of carriage and
all special agreements entered into before the damage occurred by which the
parties purport to infringe the rules laid down by this Schedule, whether by
deciding the law to be applied, or by altering the rules as to jurisdiction,
shall be null and void.
47. Carriage performed in
extraordinary circumstances. The provisions of Rules 3 to 5, 7 and 8 relating to
the documentation of carriage shall not apply in the case of carriage performed
in extraordinary circumstances outside the normal scope of a carrier’s
business.
48. Definition of days. The expression “days” when used in this Schedule
means calendar days, not working days.
49. Insurance. (1) The carrier shall maintain adequate insurance
covering all possible liability under this Schedule. A carrier may be required
by the Federal Government to furnish evidence that it maintains adequate
insurance covering its liability under this Schedule.
(2) The carrier shall comply with rules
that may be notified through publication in the Official Gazette by the Federal
Government regarding the obligation of the carrier to maintain adequate
insurance coverage.
[See sections 3(5) and 5(4)]
PROVISIONS AS TO LIABILITY OF CARRIERS IN THE EVENT
OF THE DEATH OF A PASSENGER
1. The liability shall be enforceable
for the benefit of such of the members of the passenger’s family as sustained
damage by reason of his death.
In this rule the expression “member of
a family” means wife or husband, parent, step-parent, grandparent, brother,
sister, half-brother, half-sister, child, step- child, grandchild:
Provided that, in deducing any such
relationship as aforesaid any illegitimate person and any adopted person shall
be treated as being, or as having been, the legitimate child of his mother and
reputed father or, as the case may be.
2. An action to enforce the liability
may be brought by the personal representative of the passenger or by any person
for whose benefit the liability is under the last preceding rule enforceable,
but only one action shall be brought in Pakistan in respect of the death of any
one passenger, and every such action by whosoever brought shall be for the
benefit of all such persons so entitled as aforesaid as either are domiciled in
Pakistan, or, not being domiciled there, express a desire to take the benefit
of the action.
3. Subject to the provisions of the
next succeeding rule the amount recovered in any such action, after deducting
any costs not recovered from the defendant, shall be divided between the
persons entitled in such proportions as the Court may direct.
4. The Court before which any such
action is brought may at any stage of the proceedings make any such order as
appears to the Court to be just and equitable in view of, as the case may be,
the provisions of the First, Second, Third, Fourth and Fifth Schedules to this
Bill limiting the liability of a carrier and of any proceedings which have
been, or are likely to be, commenced outside Pakistan in respect of the death
of the passenger in question.
5. (1) Any person competent to bring an
action under rule 2 of this Schedule may, instead of bringing such action,
apply to the carrier to make payment of the amount which could have been
recovered in any such action to the members of the passenger’s family mentioned
in the certificate granted under rule 6 to be divided between them in the
proportions set out in the certificate.
(2) Where an application under sub-rule
(1) is not accompanied by a certificate under rule 6, the carrier shall advise
the applicant to obtain such certificate.
6. (1) Any person competent to bring an
action under rule 2 may apply to the District Judge or the High Court, as the
case may be, having jurisdiction to issue a succession certificate following
the death of the passenger for the grants of a certificate to the effect that
only the persons named therein are the members of the passenger’s family for
whose benefit the liability is enforceable under rule 1.
(2) A certificate
under sub-rule (1) shall set out the proportion in which each member mentioned
therein shall receive the amount recoverable; and the proportion shall be such
as may be agreed upon amongst the members or, in the absence of such agreement,
as may be determined by District Judge or, as the case may be, the High Court.
7. For the purpose of the grant of a
certificate under rule 6, the District Judge or the High Court, as the case may
be, shall publish, or cause to be published, in such newspapers as he or it may
think fit, a copy of the application for such certificate and shall follow, so
far as may be, the same procedure as in the case of an application for a
succession certificate under the Succession Act, 1925 (XXXIX of 1925), or any
applicable law for the time being in force.
8. Payment made by the carrier in
accordance with the certificate shall give him full and final discharge from
his liability.
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