Federal Register of Legislation - Australian Government

Primary content

Act No. 81 of 1958 as made
An Act to approve Ratification by Australia of the Rome Convention on Damage caused by Foreign Aircraft to third Parties on the Surface, to give effect to that Convention, and to make provision with respect to the Liabilities of certain Operators of Aircraft in respect of damage on the Surface to which that Convention does not apply.
Date of Assent 10 Oct 1958
Date of repeal 08 Nov 2000
Repealed by Damage by Aircraft Act 1999

CIVIL AVIATION (DAMAGE BY AIRCRAFT).

 

No. 81 of 1958.

An Act to approve Ratification by Australia of the Rome Convention on Damage caused by Foreign Aircraft to third Parties on the Surface, to give effect to that Convention, and to make provision with respect to the Liabilities of certain Operators of Aircraft in respect of damage on the Surface to which that Convention does not apply.

[Assented to 10th October, 1958.]

BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows :—

Part I.—Preliminary.

Short title.

1.  This Act may be cited as the Civil Aviation (Damage by Aircraft) Act 1958.

Commencement.

2.—(1.)   Parts I. and IV. of this Act shall come into operation on the day on which this Act receives the Royal Assent.

(2.)  Part II. of this Act shall come into operation on a date to be fixed by Proclamation, not being earlier than the ninetieth day after the deposit on behalf of Australia of an instrument of ratification of the Convention.

(3.)  Part III. of this Act shall come into operation on a date to be fixed by Proclamation.

Parts.

3.  This Act is divided into Parts, as follows:—

Part I.—Preliminary (Sections 1-7).

Part II.—Damage to which the Rome Convention applies (Sections 8-15).

Part III.—Other Damage to which this Act applies (Sections 16-19).

Part IV.—Regulations (Section 20).

Definitions.

4.  In this Act, unless the contrary intention appears—

“Australia” includes the Territories of the Commonwealth; “contracting State” means a country, other than Australia, which is bound by the provisions of the Convention;


“the Convention” means the Convention on Damage caused by Foreign Aircraft to third Parties on the Surface opened for signature at Rome on the seventh day of October, One thousand nine hundred and fifty-two, being the Convention a copy of the authentic text of which in the English language is set out in the Schedule to this Act.

Extension to Territories.

5.  This Act extends to every Territory of the Commonwealth.

Act to bind Crown.

6.  This Act binds the Crown in right of the Commonwealth or of any State.

Approval of ratification of Rome Convention.

7.  Approval is given to ratification by Australia of the Convention.

Part II.—Damage to which the Rome Convention applies.

Convention to have the force of law.

8.—(1.)  The provisions of the Convention have the force of law in Australia.

(2.)  A reference in this Part to the Convention shall, unless the contrary intention appears, be read as a reference to the provisions of the Convention as having the force of law by virtue of this section.

Actions under Convention.

9.—(1.)  Where damage in relation to which the Convention applies occurs in Australia, an action under the Convention in respect of the damage does not lie in Australia except in a Court having jurisdiction in relation to the place where the damage occurs.

(2.)  Where an action under the Convention is pending in the Supreme Court of a State or Territory of the Commonwealth, an action under the Convention arising out of the same incident (other than an action instituted before the institution of the action in the Supreme Court) does not lie in any other Court of that State or Territory.

(3.)  Where actions under the Convention arising out of a single incident are pending in two or more Courts of a State or Territory of the Commonwealth (whether or not one of those Courts is the Supreme Court), the Supreme Court of that State or Territory may, upon the application of the defendant in any such action (or, if there is more than one defendant, upon the application of any defendant), order any such action to be removed into the Supreme Court, and any such order may be made on such terms and conditions as the Supreme Court thinks fit.


(4.)  For the purposes of section thirty-eight of the Judiciary Act 1903-1955, an action under the Convention shall be deemed not to be a matter arising directly under a treaty.

(5.)  For the purposes of this section, the Territory of Papua and the Territory of New Guinea shall be deemed to constitute one Territory of the Commonwealth.

Consolidation of actions.

10.—(1.)   A Court in which two or more actions under the Convention are pending, being actions arising out of a single incident, may make such orders as it thinks fit, upon such terms and conditions as it thinks fit, for the purpose of ensuring, so far as the interests of justice and convenience permit, that all of those actions are consolidated for disposal in a single proceeding.

(2.)  The last preceding sub-section does not prejudice any power of a Court under any other law with respect to any actions to which that sub-section is applicable.

Liability in respect of death.

11.(1.)   The provisions of this section apply in relation to the liability imposed by the Convention on a person in respect of the death of another person.

(2.)  The action to enforce the liability may be brought by the personal representative of the deceased person or by one of the persons who suffered damage by reason of the death, but only one action shall be brought in Australia in respect of the death of any one person and the action, by whomsoever brought, shall be for the benefit of all persons for whose benefit the liability is enforceable who are resident in Australia or, not being resident in Australia, express the desire to take the benefit of the action.

(3.)  The damages recoverable in the action include loss of earnings or profits up to the date of death and the reasonable expenses of the funeral of the deceased person and medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of the deceased person.

(4.)  In awarding damages, the Court is not limited to the financial loss resulting from the death of the deceased person.

(5.)  Subject to the next succeeding sub-section, the amount recovered in the action, after deducting any costs not recovered from the defendant, shall be divided amongst the persons entitled in such proportions as the Court (or, where the action is tried with a jury, the jury) directs.

(6.)  The Court may, at any stage of the proceedings, make any such order as appears to the Court to be just and equitable in view of the provisions of the Convention limiting the liability of the defendant.


Proceeds of insurance policies in relation to death or injury.

12.   In assessing damages in respect of liability under the Convention in relation to the death of, or personal injury to, a person, there shall not be taken into account—

(a) a sum paid or payable on the death of, or personal injury to, that person under a contract of insurance;

(b) a sum paid or payable out of a superannuation, provident or like fund, or by way of benefit from a friendly society, benefit society or trade union; or

(c) in the case of death, a premium that would have become payable under a contract of insurance in respect of the life of that person if he had lived after the time at which he died.

Actions against contracting States as operators of aircraft.

13.(1.)   A contracting State shall, for the purposes of an action under the Convention brought in a Court in Australia to enforce a claim in respect of damage for which, under the Convention, the contracting State is liable as operator of the aircraft concerned or as being otherwise connected with that aircraft, be deemed to have submitted to the jurisdiction of that Court.

(2.)  Nothing in this section authorizes the issue of execution against the property of a contracting State.

Evidence of certain matters.

14.(1.)   The Minister may, by notice published in the Gazette, from time to time declare—

(a) that a country specified in the notice is a country which has ratified or adhered to the Convention and the date on which the ratification or adherence became effective;

(b) that a country has, at the time of deposit of its instrument of ratification of or adherence to the Convention, declared that its acceptance of the Convention does not apply to a territory or territories specified in the notice;

(c) that a country specified in the notice has extended the application of the Convention to a territory or territories specified in the notice, and the date as from which the extension took effect;

(d) that a country specified in the notice has made a declaration under paragraph 3 of Article 37 of the Convention in relation to a territory specified in the notice; or

(e) that a country specified in the notice has denounced the Convention in respect of all of the territories for the foreign relations of which that country is responsible, or in respect of any such territory specified in the notice, and the date upon which the denunciation became effective.


(2.)  A notice under this section is evidence of the matters declared.

Regulations for giving effect to Convention.

15.(1.)   The regulations may prescribe all matters that are necessary or convenient to be prescribed for carrying out or giving effect to the Convention and, in particular, matters in relation to—

(a) the manner in which requirements may be made under Chapter III. of the Convention and the authority that is to be the appropriate authority in Australia for any purpose in relation to that Chapter; and

(b) the manner in which evidence may be given, in proceedings under the Convention, of a certificate of airworthiness of an aircraft or the identity of the registered owner of an aircraft.

(2.)  The regulations for carrying out or giving effect to Article 20 of the Convention may include regulations—

(a) prescribing the Courts in Australia by which judgments referred to in that Article may be enforced and the formalities that are to be complied with before such a judgment may be so enforced;

(b) in matters arising under that Article or the regulations—

(i) conferring original jurisdiction on the High Court;

(ii) investing any Court of a State with federal jurisdiction; or

(iii) conferring jurisdiction on a court of a Territory of the Commonwealth;

(c) providing that an application to a Court in Australia for execution of a judgment referred to in that Article shall be made by way of, or be preceded by, an application for registration of the judgment in that Court;

(d) providing that a Court to which such an application for registration of a judgment is made may refuse registration of the judgment, or set aside registration, upon any ground upon which, under that Article, execution of the judgment may be refused or where, for any other reason, the judgment is found not to be enforceable under that Article; and

(e) prohibiting, restricting or regulating actions or proceedings in Courts in Australia upon foreign judgments in respect of liability under the Convention, for the purpose of preventing the use of such actions or proceedings as a means of evading the limitations contained in Article 20 of the Convention on rights of execution of those judgments.


Part III.—Other Damage to which this Act applies.

Application of Part.

16.(1.)   This Part applies to an aircraft registered in Australia which, while being used for the purposes of, or moved in the course of, trade and commerce between Australia and another country, is in flight in Australia

(a) in the course of a journey of the aircraft between a place in Australia and a place outside Australia (either with or without intermediate stopping places in Australia); or

(b) in the course of a journey of the aircraft between two places in Australia, if passengers or goods are being carried in the aircraft in part performance of a contract for their carriage by a single carrier between a place in Australia and a place outside Australia.

(2.)  This Part also applies in relation to an aircraft, not being an aircraft registered in Australia or in a Contracting State, which is being used for the purposes of, or moved in the course of, trade and commerce between Australia and another country and is in flight in Australia.

(3.)  For the purposes of this section, an aircraft shall be deemed to be in flight from the moment when power is applied for the purpose of take-off until the moment when the landing run ends.

Application of provisions of Convention.

17.—(1.)   Subject to this section, the provisions of the Convention (other than Chapter III., Articles 20, 23, 27, 28 and 29 and Chapter VI.) apply, by virtue of this section, in relation to an aircraft to which this Part applies.

(2.)  For the purposes of this section, references to the Convention in the provisions of the Convention that apply by virtue of this section shall be read as references to the provisions of the Convention that apply by virtue of this section, as so applying.

(3.)  The provisions of Chapter II., and of Articles 19 and 21, of the Convention do not apply to an aircraft referred to in sub-section (2.) of the last preceding section, and, in the application of the provisions of the Convention which do apply to such an aircraft, every reference to the limits of liability provided by Chapter II. of the Convention shall be deemed to be omitted.

Application of certain provisions of Part II.

18.   The provisions of sections nine, ten, eleven and twelve of this Act apply for the purposes of this Part in like manner as they apply for the purposes of Part II., but, in the application of those provisions, any reference to the Convention shall be read as a reference to the provisions of the Convention that apply by virtue of this Part, as so applying.

Minister may require operator to be insured.

19.(1.)   The Minister may, by notice in writing, prohibit a person from operating an aircraft in circumstances in which the aircraft would be an aircraft to which this Part applies unless


there is in force a certificate in writing issued by the Minister certifying that that person is insured to the satisfaction of the Minister against liability under this Part to an extent corresponding to the extent to which an operator may be required to be insured under Chapter III. of the Convention.

(2.)  A person to whom a notice under this section has been given shall not, while the notice is in force, contravene the notice.

(3.)  For the purposes of this section and of any notice under this section, a person shall be deemed to operate an aircraft if the circumstances are such that that person would, if the aircraft were one to which the Convention applies, be the operator of that aircraft for the purposes of the Convention.

Part IV.—Regulations.

Regulations.

20.   The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.

 

THE SCHEDULE.                                               Section 4.

 

CONVENTION ON DAMAGE CAUSED BY FOREIGN AIRCRAFT TO THIRD PARTIES ON THE SURFACE.

The States Signatory to this Convention

Moved by a desire to ensure adequate compensation for persons who suffer damage caused on the surface by foreign aircraft, while limiting in a reasonable manner the extent of the liabilities incurred for such damage in order not to hinder the development of international civil air transport, and also

Convinced of the need for unifying to the greatest extent possible, through an international convention, the rules applying in the various countries of the world to the liabilities incurred for such damage,

Have Appointed to such effect the undersigned Plenipotentiaries who, duly authorised, Have Agreed as Follows:

Chapter I.—Principles of Liability

Article 1

1.   Any person who suffers damage on the surface shall, upon proof only that the damage was caused by an aircraft in flight or by any person or thing falling therefrom, be entitled to compensation as provided by this Convention. Nevertheless there shall be no right to compensation if the damage is not a direct consequence of the incident giving rise thereto, or if the damage results from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations.

2.   For the purpose of this Convention, an aircraft is considered to be in flight from the moment when power is applied for the purpose of actual take-off until the moment when the landing run ends. In the case of an aircraft lighter than air, the expression “in flight” relates to the period from the moment when it becomes detached from the surface until it becomes again attached thereto.


The Schedule—continued.

Article 2

1.  The liability for compensation contemplated by Article 1 of this Convention shall attach to the operator of the aircraft.

2.  (a) For the purposes of this Convention the term “operator” shall mean the person who was making use of the aircraft at the time the damage was caused, provided that if control of the navigation of the aircraft was retained by the person from whom the right to make use of the aircraft was derived, whether directly or indirectly, that person shall be considered the operator.

(b)  A person shall be considered to be making use of an aircraft when he is using it personally or when his servants or agents are using the aircraft in the course of their employment, whether or not within the scope of their authority.

3.  The registered owner of the aircraft shall be presumed to be the operator and shall be liable as such unless, in the proceedings for the determination of his liability, he proves that some other person was the operator and, in so far as legal procedures permit, takes appropriate measures to make that other person a party in the proceedings.

Article 3

If the person who was the operator at the time the damage was caused had not the exclusive right to use the aircraft for a period of more than fourteen days, dating from the moment when the right to use commenced, the person from whom such right was derived shall be liable jointly and severally with the operator, each of them being bound under the provisions and within the limits of liability of this Convention.

Article 4

If a person makes use of an aircraft without the consent of the person entitled to its navigational control, the latter, unless he proves that he has exercised due care to prevent such use, shall be jointly and severally liable with the unlawful user for damage giving a right to compensation under Article 1, each of them being bound under the provisions and within the limits of liability of this Convention.

Article 5

Any person who would otherwise be liable under the provisions of this Convention shall not be liable if the damage is the direct consequence of armed conflict or civil disturbance, or if such person has been deprived of the use of the aircraft by act of public authority.

Article 6

1.  Any person who would otherwise be liable under the provisions of this Convention shall not be liable for damage if he proves that the damage was caused solely through the negligence or other wrongful act or omission of the person who suffers the damage or of the latter’s servants or agents. If the person liable proves that the damage was contributed to by the negligence or other wrongful act or omission of the person who suffers the damage, or of his servants or agents, the compensation shall be reduced to the extent to which such negligence or wrongful act or omission contributed to the damage. Nevertheless there shall be no such exoneration or reduction if, in the case of the negligence or other wrongful act or omission of a servant or agent, the person who suffers the damage proves that his servant or agent was acting outside the scope of his authority.

2.  When an action is brought by one person to recover damages arising from the death or injury of another person, the negligence or other wrongful act or omission of such other person, or of his servants or agents, shall also have the effect provided in the preceding paragraph.

Article 7

When two or more aircraft have collided or interfered with each other in flight and damage for which a right to compensation as contemplated in Article 1 results, or when two or more aircraft have jointly caused such damage, each of the aircraft concerned shall be considered to have caused the damage and the operator of each aircraft shall be liable, each of them being bound under the provisions and within the limits of liability of this Convention.

Article 8

The persons referred to in paragraph 3 of Article 2 and in Articles 3 and 4 shall be entitled to all defences which are available to an operator under the provisions of this Convention.


The Schedule—continued.

Article 9

Neither the operator, the owner, any person liable under Article 3 or Article 4, nor their respective servants or agents, shall be liable for damage on the surface caused by an aircraft in flight or any person or thing falling therefrom otherwise than as expressly provided in this Convention. This rule shall not apply to any such person who is guilty of a deliberate act or omission done with intent to cause damage.

Article 10

Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person.

Chapter II.—Extent of Liability

Article 11

1.  Subject to the provisions of Article 12, the liability for damage giving a right to compensation under Article 1, for each aircraft and incident, in respect of all persons liable under this Convention, shall not exceed:

(a) 500,000 francs for aircraft weighing 1,000 kilogrammes or less;

(b) 500,000 francs plus 400 francs per kilogramme over 1,000 kilogrammes for aircraft weighing more than 1,000 but not exceeding 6,000 kilogrammes;

(c) 2,500,000 francs plus 250 francs per kilogramme over 6,000 kilogrammes for aircraft weighing more than 6,000 but not exceeding 20,000 kilogrammes;

(d) 6,000,000 francs plus 150 francs per kilogramme over 20,000 kilogrammes for aircraft weighing more than 20,000 but not exceeding 50,000 kilogrammes;

(e) 10,500,000 francs plus 100 francs per kilogramme over 50,000 kilogrammes for aircraft weighing more than 50,000 kilogrammes.

2.   The liability in respect of loss of life or personal injury shall not exceed 500,000 francs per person killed or injured.

3.   “Weight” means the maximum weight of the aircraft authorised by the certificate of airworthiness for take-off, excluding the effect of lifting gas when used.

4.   The sums mentioned in francs in this Article refer to a currency unit consisting of 65½ milligrammes of gold of millesimal fineness 900. 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, or, in cases covered by Article 14, at the date of the allocation.

Article 12

1.   If the person who suffers damage proves that it was caused by a deliberate act or omission of the operator, his servants or agents, done with intent to cause damage, the liability of the operator shall be unlimited; provided that in the case of such act or omission of such servant or agent, it is also proved that he was acting in the course of his employment and within the scope of his authority.

2.   If a person wrongfully takes and makes use of an aircraft without the consent of the person entitled to use it, his liability shall be unlimited.

Article 13

1.   Whenever, under the provisions of Article 3 or Article 4, two or more persons are liable for damage, or a registered owner who was not the operator is made liable as such as provided in paragraph 3 of Article 2, the persons who suffer damage shall not be entitled to total compensation greater than the highest indemnity which may be awarded under the provisions of this Convention against any one of the persons liable.

2.   When the provisions of Article 7 are applicable, the person who suffers the damage shall be entitled to be compensated up to the aggregate of the limits applicable with respect to each of the aircraft involved, but no operator shall be liable for a sum in excess of the limit applicable to his aircraft unless his liability is unlimited under the terms of Article 12.


The Schedule—continued.

Article 14

If the total amount of the claims established exceeds the limit of liability applicable under the provisions of this Convention, the following rules shall apply, taking into account the provisions of paragraph 2 of Article 11:

(a) If the claims are exclusively in respect of loss of life or personal injury or exclusively in respect of damage to property, such claims shall be reduced in proportion to their respective amounts.

(b) If the claims are both in respect of loss of life or personal injury and in respect of damage to property, one half of the total sum distributable shall be appropriated preferentially to meet claims in respect of loss of life and personal injury and, if insufficient, shall be distributed proportionately between the claims concerned. The remainder of the total sum distributable shall be distributed proportionately among the claims in respect of damage to property and the portion not already covered of the claims in respect of loss of life and personal injury.

Chapter III.—Security for Operator’s Liability

Article 15

1.   Any Contracting State may require that the operator of an aircraft registered in another Contracting State shall be insured in respect of his liability for damage sustained in its territory for which a right to compensation exists under Article 1 by means of insurance up to the limits applicable according to the provisions of Article 11.

2.   (a) The insurance shall be accepted as satisfactory if it conforms to the provisions of this Convention and has been effected by an insurer authorised to effect such insurance under the laws of the State where the aircraft is registered or of the State where the insurer has his residence or principal place of business, and whose financial responsibility has been verified by either of those States.

(b)  If insurance has been required by any State under paragraph 1 of this Article, and a final judgment in that State is not satisfied by payment in the currency of that State, any Contracting State may refuse to accept the insurer as financially responsible until such payment, if demanded, has been made.

3.   Notwithstanding the last preceding paragraph the State overflown may refuse to accept as satisfactory insurance effected by an insurer who is not authorised for that purpose in a Contracting State.

4.   Instead of insurance, any of the following securities shall be deemed satisfactory if the security conforms to Article 17:

(a) a cash deposit in a depository maintained by the Contracting State where the aircraft is registered or with a bank authorised to act as a depository by that State;

(b) a guarantee given by a bank authorised to do so by the Contracting State where the aircraft is registered, and whose financial responsibility has been verified by that State;

(c) a guarantee given by the Contracting State where the aircraft is registered, if that State undertakes that it will not claim immunity from suit in respect of that guarantee.

5.  Subject to paragraph 6 of this Article, the State overflown may also require that the aircraft shall carry a certificate issued by the insurer certifying that insurance has been effected in accordance with the provisions of this Convention, and specifying the person or persons whose liability is secured thereby, together with a certificate or endorsement issued by the appropriate authority in the State where the aircraft is registered or in the State where the insurer has his residence or principal place of business certifying the financial responsibility of the insurer. If other security is furnished in accordance with the provisions of paragraph 4 of this Article, a certificate to that effect shall be issued by the appropriate authority in the State where the aircraft is registered.

6.  The certificate referred to in paragraph 5 of this Article need not be carried in the aircraft if a certified copy has been filed with the appropriate authority designated by the State overflown or, if the International Civil Aviation Organization agrees, with that Organization, which shall furnish a copy of the certificate to each contracting State.


The Schedule—continued.

7.   (a) Where the State overflown has reasonable grounds for doubting the financial responsibility of the insurer, or of the bank which issues a guarantee under paragraph 4 of this Article, that State may request additional evidence of financial responsibility, and if any question arises as to the adequacy of that evidence the dispute affecting the States concerned shall, at the request of one of those States, be submitted to an arbitral tribunal which shall be either the Council of the International Civil Aviation Organization or a person or body mutually agreed by the parties.

(b)   Until this tribunal has given its decision the insurance or guarantee shall be considered provisionally valid by the State overflown.

8.     Any requirements imposed in accordance with this Article shall be notified to the Secretary General of the International Civil Aviation Organization who shall inform each Contracting State thereof.

9.     For the purpose of this Article, the term “insurer” includes a group of insurers, and for the purpose of paragraph 5 of this Article, the phrase “appropriate authority in a State” includes the appropriate authority in the highest political subdivision thereof which regulates the conduct of business by the insurer.

Article 16

1.     The insurer or other person providing security required under Article 15 for the liability of the operator may, in addition to the defences available to the operator, and the defence of forgery, set up only the following defences against claims based on the application of this Convention:

(a) that the damage occurred after the security ceased to be effective. However, if the security expires during a flight, it shall be continued in force until the next landing specified in the flight plan, but no longer than twenty-four hours; and if the security ceases to be effective for any reason other than the expiration of its term, or a change of operator, it shall be continued until fifteen days after notification to the appropriate authority of the State which certifies the financial responsibility of the insurer or the guarantor that the security has ceased to be effective, or until effective withdrawal of the certificate of the insurer or the certificate of guarantee if such a certificate has been required under paragraph 5 of Article 15, whichever is the earlier;

(b) that the damage occurred outside the territorial limits provided for by the security, unless flight outside of such limits was caused by force majeure, assistance justified by the circumstances, or an error in piloting, operation or navigation.

2.   The State which has issued or endorsed a certificate pursuant to paragraph 5 of Article 15 shall notify the termination or cessation, otherwise than by the expiration of its term, of the insurance or other security to the interested contracting States as soon as possible.

3.   Where a certificate of insurance or other security is required under paragraph 5 of Article 15 and, the operator is changed during the period of the validity of the security, the security shall apply to the liability under this Convention of the new operator, unless he is already covered by other insurance or security or is an unlawful user, but not beyond fifteen days from the time when the insurer or guarantor notifies the appropriate authority of the State where the certificate was issued that the security has become ineffective or until the effective withdrawal of the certificate of the insurer if such a certificate has been required under paragraph 5 of Article 15, whichever is the shorter period.

4.   The continuation in force of the security under the provisions of paragraph 1 of this Article shall apply only for the benefit of the person suffering damage.

5.   Without prejudice to any right of direct action which he may have under the law governing the contract of insurance or guarantee, the person suffering damage may bring a direct action against the insurer or guarantor only in the following cases:

(a) where the security is continued in force under the provisions of paragraph 1 (a) and (b) of this Article;

(b) the bankruptcy of the operator.

6.   Excepting the defences specified in paragraph 1 of this Article, the insurer or other person providing security may not, with respect to direct actions brought by the person suffering damage based upon application of this Convention, avail himself of any grounds of nullity or any right of retroactive cancellation.

7.   The provisions of this Article shall not prejudice the question whether the insurer or guarantor has a right of recourse against any other person.


The Schedule—continued.

Article 17

1.   If security is furnished in accordance with paragraph 4 of Article 15, it shall be specifically and preferentially assigned to payment of claims under the provisions of this Convention.

2.   The security shall be deemed sufficient if, in the case of an operator of one aircraft, it is for an amount equal to the limit applicable according to the provisions of Article 11, and in the case of an operator of several aircraft, if it is for an amount not less than the aggregate of the limits of liability applicable to the two aircraft subject to the highest limits.

3.   As soon as notice of a claim has been given to the operator, the amount of the security shall be increased up to a total sum equivalent to the aggregate of:

(a) the amount of the security then required by paragraph 2 of this Article, and

(b) the amount of the claim not exceeding the applicable limit of liability.

This increased security shall be maintained until every claim has been disposed of.

Article 18

Any sums due to an operator from an insurer shall be exempt from seizure and execution by creditors of the operator until claims of third parties under this Convention have been satisfied.

Chapter IV.—Rules of Procedure and Limitation of Actions

Article 19

If a claimant has not brought an action to enforce his claim or if notification of such claim has not been given to the operator within a period of six months from the date of the incident which gave rise to the damage, the claimant shall only be entitled to compensation out of the amount for which the operator remains liable after all claims made within that period have been met in full.

Article 20

1.   Actions under the provisions of this Convention may be brought only before the courts of the Contracting State where the damage occurred. Nevertheless, by agreement between any one or more claimants and any one or more defendants, such claimants may take action before the courts of any other Contracting State, but no such proceedings shall have the effect of prejudicing in any way the rights of persons who bring actions in the State where the damage occurred. The parties may also agree to submit disputes to arbitration in any Contracting State.

2.   Each Contracting State shall take all necessary measures to ensure that the defendant and all other parties interested are notified of any proceedings concerning them and have a fair and adequate opportunity to defend their interests.

3.   Each Contracting State shall so far as possible ensure that all actions arising from a single incident and brought in accordance with paragraph 1 of this Article are consolidated for disposal in a single proceeding before the same court.

4.   Where any final judgment, including a judgment by default, is pronounced by a court competent in conformity with this Convention, on which execution can be issued according to the procedural law of that court, the judgment shall be enforceable upon compliance with the formalities prescribed by the laws of the Contracting State, or of any territory, State or province thereof, where execution is applied for:

(a) in the Contracting State where the judgment debtor has his residence or principal place of business or,

(b) if the assets available in that State and in the State where the judgment was pronounced are insufficient to satisfy the judgment, in any other Contracting state where the judgment debtor has assets.

5.   Notwithstanding the provisions of paragraph 4 of this Article, the court to which application is made for execution may refuse to issue execution if it is proved that any of the following circumstances exist:

(a) the judgment was given by default and the defendant did not acquire knowledge of the proceedings in sufficient time to act upon it;

(b) the defendant was not given a fair and adequate opportunity to defend his interests;


The Schedule—continued.

(c) the judgment is in respect of a cause of action which had already, as between the same parties, formed the subject of a judgment or an arbitral award which, under the law of the State where execution is sought, is recognized as final and conclusive;

(d) the judgment has been obtained by fraud of any of the parties;

(e) the right to enforce the judgment is not vested in the person by whom the application for execution is made.

6.   The merits of the case may not be reopened in proceedings for execution under paragraph 4 of this Article.

7.   The court to which application for execution is made may also refuse to issue execution if the judgment concerned is contrary to the public policy of the State in which execution is requested.

8.   If, in proceedings brought according to paragraph 4 of this Article, execution of any judgment is refused on any of the grounds referred to in sub-paragraphs (a), (b) or (d) of paragraph 5 or paragraph 7 of this Article, the claimant shall be entitled to bring a new action before the courts of the State where execution has been refused. The judgment rendered in such new action may not result in the total compensation awarded exceeding the limits applicable under the provisions of this Convention. In such new action the previous judgment shall be a defence only to the extent to which it has been satisfied. The previous judgment shall cease to be enforceable as soon as the new action has been started.

The right to bring a new action under this paragraph shall, notwithstanding the provisions of Article 21, be subject to a period of limitation of one year from the date on which the claimant has received notification of the refusal to execute the judgment.

9.   Notwithstanding the provisions of paragraph 4 of this Article, the court to which application for execution is made shall refuse execution of any judgment rendered by a court of a State other than that in which the damage occurred until all the judgments rendered in that State have been satisfied.

The court applied to shall also refuse to issue execution until final judgment has been given on all actions filed in the State where the damage occurred by those persons who have complied with the time limit referred to in Article 19, if the judgment debtor proves that the total amount of compensation which might be awarded by such judgments might exceed the applicable limit of liability under the provisions of this Convention.

Similarly such court shall not grant execution when, in the case of actions brought in the State where the damage occurred by those persons who have complied with the time limit referred to in Article 19, the aggregate of the judgments exceeds The applicable limit of liability, until such judgments have been reduced in accordance with Article 14.

10. Where a judgment is rendered enforceable under this Article, payment of costs recoverable under the judgment shall also be enforceable. Nevertheless the court applied to for execution may, on the application of the judgment debtor, limit the amount of such costs to a sum equal to ten per centum of the amount for which the judgment is rendered enforceable. The limits of liability prescribed by this Convention shall be exclusive of costs.

11. Interest not exceeding four per centum per annum may be allowed on the judgment debt from the date of the judgment in respect of which execution is granted.

12. An application for execution of a judgment to which paragraph 4 of this Article applies must be made within five years from the date when such judgment became final.

Article 21

1.     Actions under this Convention shall be subject to a period of limitation of two years from the date of the incident which caused the damage.

2.   The grounds for suspension or interruption of the period referred to in paragraph 1 of this Article shall be determined by the law of the court trying the action; but in any case the right to institute an action shall be extinguished on the expiration of three years from the date of the incident which caused the damage.

Article 22

In the event of the death of the person liable, an action in respect of liability under the provisions of this Convention shall lie against those legally responsible for his obligations.


The Schedule—continued.

Chapter V.—Application of the Convention and General Provisions

Article 23

1.   This Convention applies to damage contemplated in Article 1 caused in the territory of a Contracting State by an aircraft registered in the territory of another Contracting State.

2.   For the purpose of this Convention a ship or aircraft on the high seas shall be regarded as part of the territory of the State in which it is registered.

Article 24

This Convention shall not apply to damage caused to an aircraft in flight, or to persons or goods on board such aircraft.

Article 25

This Convention shall not apply to damage on the surface if liability for such damage is regulated either by a contract between the person who suffers such damage and the operator or the person entitled to use the aircraft at the time the damage occurred, or by the law relating to workmen’s compensation applicable to a contract of employment between such persons.

Article 26

This Convention shall not apply to damage caused by military, customs or police aircraft.

Article 27

Contracting States will, as far as possible, facilitate payment of compensation under the provisions of this Convention in the currency of the State where the damage occurred.

Article 28

If legislative measures are necessary in any Contracting State to give effect to this Convention, the Secretary General of the International Civil Aviation Organization shall be informed forthwith of the measures so taken.

Article 29

As between Contracting States which have also ratified the International Convention for the Unification of Certain Rules relating to Damage caused by Aircraft to Third Parties on the Surface opened for signature at Rome on the 29 May 1933, the present Convention upon its entry into force shall supersede the said Convention of Rome.

Article 30

For the purposes of this Convention:

“Person” means any natural or legal person, including a State.

“Contracting State” means any State which has ratified or adhered to this Convention and whose denunciation thereof has not become effective.

“Territory of a State” means the metropolitan territory of a State and all territories for the foreign relations of which that State is responsible, subject to the provisions of Article 36.

Chapter VI.—Final Provisions

Article 31

This Convention shall remain open for signature on behalf of any State until it comes into force in accordance with the provisions of Article 33.

Article 32

1.   This Convention shall be subject to ratification by the signatory States.

2.   The instruments of ratification shall be deposited with the International Civil Aviation Organization.

Article 33

1.   As soon as five of the signatory States have deposited their instruments of ratification of this Convention, it shall come into force between them on the ninetieth day after the date of the deposit of the fifth instrument of ratification. It shall come into force, for each State which deposits its instrument of ratification after that date, on the ninetieth day after the deposit of its instrument of ratification.


The Schedule—continued.

2.   As soon as this Convention comes into force, it shall be registered with the United Nations by the Secretary General of the International Civil Aviation Organization.

Article 34

1.   This Convention shall, after it has come into force, be open for adherence by any non-signatory State.

2.   The adherence of a State shall be effected by the deposit of an instrument of adherence with the International Civil Aviation Organization and shall take effect as from the ninetieth day after the date of the deposit.

Article 35

1.   Any Contracting State may denounce this Convention by notification of denunciation to the International Civil Aviation Organization.

2.   Denunciation shall take effect six months after the date of receipt by the International Civil Aviation Organization of the notification of denunciation; nevertheless, in respect of damage contemplated in Article 1 arising from an incident which occurred before the expiration of the six months period, the Convention shall continue to apply as if the denunciation had not been made.

Article 36

1.   This Convention shall apply to all territories for the foreign relations of which a Contracting State is responsible, with the exception of territories in respect of which a declaration has been made in accordance with paragraph 2 of this Article or paragraph 3 of Article 37.

2.   Any State may at the time of deposit of its instrument of ratification or adherence, declare that its acceptance of this Convention does not apply to any one or more of the territories for the foreign relations of which such State is responsible.

3.   Any Contracting State may subsequently, by notification to the International Civil Aviation Organization, extend the application of this Convention to any or all of the territories regarding which it has made a declaration in accordance with paragraph 2 of this Article or paragraph 3 of Article 37. The notification shall take effect as from the ninetieth day after its receipt by the Organization.

4.   Any Contracting State may denounce this Convention, in accordance with the provisions of Article 35, separately for any or all of the territories for the foreign relations of which such State is responsible.

Article 37

1.   When the whole or part of the territory of a Contracting State is transferred to a non-contracting State, this Convention shall cease to apply to the territory so transferred, as from the date of the transfer.

2.   When part of the territory of a Contracting State becomes an independent State responsible for its own foreign relations, this Convention shall cease to apply to the territory which becomes an independent State, as from the date on which it becomes independent.

3.   When the whole or part of the territory of another State is transferred to a Contracting State, the Convention shall apply to the territory so transferred as from the date of the transfer; provided that, if the territory transferred does not become part of the metropolitan territory of the Contracting State concerned, that Contracting State may, before or at the time of the transfer, declare by notification to the International Civil Aviation Organization that the Convention shall not apply to the territory transferred unless a notification is made under paragraph 3 of Article 36.

Article 38

The Secretary General of the International Civil Aviation Organization shall give notice to all signatory and adhering States and to all States members of the Organization or of the United Nations:

(a) of the deposit of any instrument of ratification or adherence and the date thereof, within thirty days from the date of the deposit, and


The Schedule—continued.

(b) of the receipt of any denunciation or of any declaration or notification made under Article 36 or 37 and the date thereof, within thirty days from the date of the receipt.

The Secretary General of the Organization shall also notify these States of the date on which the Convention comes into force in accordance with paragraph 1 of Article 33.

Article 39

No reservations may be made to this Convention.

In witness whereof the undersigned Plenipotentiaries, having been duly authorised, have signed this Convention.

DONE at Rome on the seventh day of the month of October of the year One Thousand Nine Hundred and Fifty-two in the English, French and Spanish languages, each text being of equal authenticity.

This Convention shall be deposited with the International Civil Aviation Organization where, in accordance with Article 31, it shall remain open for signature, and the Secretary General of the Organization shall send certified copies thereof to all signatory and adhering States and to all States members of the Organization or the United Nations.

[Here follow the signatures of the Plenipotentiaries of the States on behalf of which the Convention was signed.]