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Aviation History
1938
1938 - 1210.PDF
422 FLIGHT. APRIL 28, 1938.. bility of operators on an international basis. The limits of liability, imposed are similar to those of our own Act, but run between slightly wider limits, going up to £27,500 in the case of the largest type of aircraft, and down to about £6,500 in the case of ultra-light aircraft. In one important respect they differ from our Act in that they cover liability from " the commencement of the operations of departure until the completion of the operations of arrival," whereas in this country the automatic liability is limited to '' taking off, flying, and landing." The convention has not yet been ratified, and it is to be hoped that it will not be ratified until one serious defect is amended Under the convention the aircraft operator loses the benefit of all limitation in the event of the wilful misconduct not only of himself but of any of his servants, even though he may have been in no way a party to such misconduct. Aircraft operators may justifiably feel that they have been badly treated on the question of third-party liability. Opinions are divided as to why the liability was originally imposed. One view is that it was because an aircraft wouM, under the existing rules of law, have been commit- ting a trespass every time it flew over private property, and that in return for the right of passage it was fair to make the machine's owner automatically liable for any damage caused. Another view is that at the time in ques- tion, just after the war, aircraft were looked upon merely " as carriers of death and destruction, and that anyone wicked enough to operate them must be penalised accordingly. Illogical Whatever may be the rights and wrongs of the case, it can hardly be denied that a law which imposes an auto- matic liability for third-party damage caused within the confines of a recognised airport is illogical. One country at least has recognised this and gives a right of recovery in such cases only upon proof of negligence. I will give you three guesses as to which country it is, and you will be wrong. It is Siam. Liability to passengers.—Again the position varies, according, in this case, to whether the flight is internal, is " international " within the meaning of the Warsaw Con- vention, or is international outside the meaning. In the first case the liability of the air carrier is largely governed by contract—that is to say, by the terms of the agreement between himself and his passenger. The most usual way of making this agreement is by giving to the passenger a ticket upon which are printed words bringing to his notice the carrier's conditions of carriage. This sounds simple enough, but in actual practice there are one or two snags. The ticket must in clear and unmistakable terms bring the conditions of carriage to the passenger's notice. Thus it is not sufficient to print the reference to these in small or illegible type, or on the back of a ticket which the passenger may or may not turn over, or inside a folded ticket which the passenger may or may not open, or anywhere on a ticket which is issued inside a folder or cover. It is a question of fact for the Court to decide in each case as to whether the conditions were or were not sufficiently brought to the passenger's notice, and in any of the foregoing cases the carrier runs the risk of having it decided that they were not so brought to his notice. Where, as is usually the case, the carrier is seeking to contract out of all liability, the safest course is to issue a ticket which is not folded up or placed in a container and which contains in bold type on the top of the front page a reference to the conditions printed on the back. The back of the ticket should then contain either the whole of the conditions or at least those under which the carrier purports to contract out of liability. It has sometimes been argued that air carriers ought not to contract out of liability in this way. The answer is that as the law stands to-day they dare not take any other course. To act as common carriers and to accept unlimited liability would be beyond the financial resources of most of them, whether they carried the risk themselves or whether they sought to protect themselves by insurance. On the other hand, to accept a limited liability within the scope of their financial resources is an extremely risky busi- ness, since there is a decision of the Court of Appeal to show that such a limitation, although it may be binding on the passenger, may not be binding on his dependents in the event of his death. -r For the time being, therefore, the only practical courwjf which the operator can pursue is to contract out of all lia-f bility so far as he can. Proposals, however, are on foot to extend the Carriage by Air Act (incorporating the terms of the Warsaw Convention) to internal air transport with certain modifications, including the deletion of the compU| cated documents of carriage required by the convention; If and when this is done the carrier will have a limited liability which he will be able to insure at a reasonable premium. (I do not say reasonable from his point of view^ but reasonable on the basis of the statistical records!) For international carriage as defined by the convention (that is to say, carriage between the territories of any two States which have ratified the convention, or between different territories of the same ratifying State with an intermediate landing in a foreign country) liability is governed by the terms of the Warsaw Convention. Broadly speaking, this convention imposes a presumption of !iar- bility upon the carrier which he can escape only by showing that the accident was unavoidable (at any rate, that is the view so far taken by the British courts). The liability, however, is limited in respect of death or physical injury or delay to a maximum sum of 125,000 French francs (of a certain gold content) per passenger. This sum -was in- tended to be the equivalent of £1,000, but has increased to about £1,670 owing to our having gone off the gold standard. The limit does not apply where the damage was caused by wilful misconduct. In respect of baggage, there is a limit of 250 francs per kilo, for registered baggage, and of 5,000 francs for personal baggage of which the passenger retains control. In respect of this the same presumption of liability arises, but the carrier is not liable if he can prove that the accident was due to an error of pilotage or navigation. As, however, in most accidents, the damage to baggage is accompanied by injury to the passenger, the carrier is not unnaturally reluctant to avail himself of this defence, since by estab- lishing it he automatically establishes his liability for the personal injuries. In both cases the limitation of liability is dependent upon the issue of certain documents of carriage laid down by the convention. As regards baggage, the carrier must issue a somewhat complicated baggage check, and failure to in- clude any oi the statutory particulars apparently makes him liable without limit or defence In the case of passengers, he must also issue a complicated passenger ticket, but here it would seem that a failure to include all the required par- ticulars will not affect the question of his liability, at any rate in the view of the British Courts. \ ; Complication It is these complicated documents of carriage which are one of the chief drawbacks to the practical working of the Warsaw Convention rules. Their preparation involves a great deal of unnecessary clerical work, and is a source of unnecessary irritation and delay to passengers and carriers alike. There is every reason to hope that they will be washed out when the Carriage by Air Act is extended to internal carriage, and the sooner they are deleted from the Warsaw Convention the better for everyone concerned. As regards carriage which is international in the gener- ally accepted sense, but does not fall within the scope of the Warsaw Convention, no hard-and-fast rules can be laid down. Generally speaking, the carrier treats it as internal carriage and contracts out of all liability by his conditions of carriage. Whether the disclaimer is effective or not depends upon the law of the country in which the accident occurs and the question of whether the Courts of that country have jurisdiction to deal with the claim. Where one of their own nationals is concerned, at any rate, the carrier will usually find that such jurisdiction is claimed and that he is liable to pay damages, at any rate unless he can establish affirmatively that the accident was not due to the negligence of himself or his servants. Liability in tespect of freight and cargo.—The position in respect of freight and cargo is very much the same as (Concluded on p. 424.)
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