The Carriage by Air Acts (Application of Provisions) (Overseas Territories) Order 1967

Made: 24th May 1967

Coming into Operation: 1st June 1967

At the Court at Buckingham Palace, the 24th day of May 1967

Present,

The Queen's Most Excellent Majesty in Council

Whereas a draft of the following Order has been laid before Parliament and approved by resolution of each House of Parliament:

Now, therefore, Her Majesty, by virtue and in exercise of the powers conferred on Her by sections 9and 10 of the Carriage by Air Act 1961 and section 5 of the Carriage by Air (Supplementary Provisions) Act 1962, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:—

Citation and commencement

1

This Order may be cited as the Carriage by Air Acts (Application of Provisions) (Overseas Territories) Order 1967 and shall come into operation on 1st June 1967.

Interpretation

2

• (1) In this Order, unless the context otherwise requires—

• “The Act of 1961” means the Carriage by Air Act 1961;

• “The Act of 1962” means the Carriage by Air (Supplementary Provisions) Act 1962;

• “The amended Convention” means the English text of the Warsaw Convention with the amendments made to it by the Hague Protocol, as set out in the First Schedule to the Act of 1961, and includes the Additional Protocol to the Warsaw Convention as set out at the end of that Schedule;

• “Governor of an Overseas Territory” means the officer for the time being administering the government of that territory;

• “The Guadalajara Convention” means the English text of 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, as set out in the Schedule to the Act of 1962;

• “Overseas Territory” means any of the territories to which this Order applies in accordance with the provisions of Article 9 of this Order;

• “The Warsaw Convention” means the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on 12th October 1929.

• (2) The Interpretation Act 1889 shall apply, with the necessary adaptations, for the purpose of interpreting this Order and otherwise in relation thereto as it applies for the purpose of interpreting and in relation to Acts of Parliament of the United Kingdom.

Application of Order to certain carriage by air

3

This Order shall apply to all carriage by air, not being carriage to which the amended Convention applies.

Non-International carriage, and carriage of mail and postal packages

4

Schedule 2 to this Order shall have effect in respect of carriage to which this Order applies, being either—

• (a) carriage which is not international carriage as defined in schedule 4 to this Order, or

• (b) carriage of mail or postal packages.

International carriage under the Warsaw Convention

5

• (1) Schedule 4 to this Order shall have effect in respect of carriage to which this Order applies, being carriage which is international carriage as defined in that schedule.

• (2) Sections 2 and 8 of the Act of 1961, adapted and modified in the form set out in schedule 3 to this Order, shall apply to such carriage as aforesaid.

Power to restrict application of Order

6

The Governor of an Overseas Territory may by writing under his hand direct that, in relation to that Territory, any carriage or class of carriage, or any person or class of person shall be exempted from any of the requirements imposed by this Order, and any such direction may be expressed to be, and if so expressed shall take effect, subject to any conditions or limitations which in the circumstances of the case appear to the Governor to be required.

Application of certain provisions of the Acts of 1961 and 1962

7

Sections 3, 4 and 5 of the Act of 1961 and subsections (1) and (2) of section 3 of the Act of 1962, adapted and modified in the form as set out in schedule 1 to this Order, shall apply to carriage by air to which this Order applies, and any reference in the said subsections (1) and (2) of section 3 of the Act of 1962 to the Act of 1961 shall be construed as a reference to that Act as so adapted and modified.

Gratuitous carriage by the Crown

8

• (1)

• (a) This Order shall apply to gratuitous carriage by the Crown as it applies to carriage by the Crown for reward, and

• (b) the Acts of 1961 and 1962, as adapted and modified by the provisions of the Carriage by Air (Overseas Territories) Order 1967 [^f00001] and extended to the territories therein mentioned, shall apply to gratuitous carriage by the Crown as they apply by virtue of that Order, to carriage by the Crown for reward:

Provided, in each case, that the Crown shall not be precluded by Article 3(2) of the amended Convention as so applied from availing itself of the provisions of Article 22 thereof (which provides for the limitation of the carrier's liability in the carriage of persons) by reason of a passenger ticket not having been delivered or of the ticket not including the required notice.

• (2) References in this section to the Crown shall be construed as including references to the Crown in respect of the government of an Overseas Territory.

Application of Order to Overseas Territories

9

This Order shall apply to the territories mentioned in schedule 5 to this Order.

Revocation

10

The following Orders are revoked in so far as they apply as part of the law of the territories mentioned in schedule 5 to this Order:—

• The Carriage by Air (Non-international Carriage) (Colonies, Protectorates and Trust Territories) Order 1953[^f00002];

• The Carriage by Air (Non-international Carriage) (Colonies, Protectorates and Trust Territories) (Amendment) Order 1955[^f00003]and

• The Carriage by Air (Non-international Carriage) (Colonies, Protectorates and Trust Territories) (Amendment) Order 1961[^f00004]

SCHEDULE 1

PART I — ADAPTED AND MODIFIED PROVISIONS OF THE ACT OF 1961

Fatal accidents

3

Any liability imposed by Article 17 in Part I of schedule 2 and in Part I of schedule 4 to this Order on a carrier in respect of the death of a passenger shall be in substitution of any liability of the carrier in respect of the death of that passenger either under any enactment or at common law and the provisions set out in the Annex to this Part of this schedule shall have effect with respect to the persons by and for whose benefit the liability so imposed is enforceable and with respect to the manner in which it may be enforced.

Limitation of liability

4

• (1) It is hereby declared that the limitations on liability in Article 22 in Part I of schedule 2 and in Part I of schedule 4 to this Order apply whatever the nature of the proceedings by which liability may be enforced and that, in particular—

• (a) those limitations apply where proceedings are brought by a tortfeasor to obtain a contribution from another tortfeasor, and

• (b) the limitation for each passenger in paragraph (1) of the said Article 22 applies to the aggregate liability of the carrier in all proceedings which may be brought against him under the law of an Overseas Territory, together with any proceedings brought against him outside the Overseas Territory.

• (2) A court before which proceedings are brought to enforce a liability which is limited by the said Article 22 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 said Article 22, and of any other proceedings which have been, or are likely to be, commenced in an Overseas Territory or elsewhere to enforce the liability in whole or in part.

• (3) Without prejudice to the last foregoing subsection, a court before which proceedings are brought to enforce a liability which is limited by the said Article 22 shall, where the liability is, or may be, partly enforceable in other proceedings in an Overseas Territory or elsewhere, have jurisdiction to award an amount less than the court would have awarded if the limitation applied solely to the proceedings before the court, or to make any part of its award conditional on the result of any other proceedings.

• (4) The Governor of an Overseas Territory may, in such manner as he may think fit, from time to time specify the respective amounts which for the purpose of the said Article 22, and in particular of paragraph (5) or (4) of that Article, as the case may be, are to be taken as equivalent to the sums expressed in francs which are mentioned in that Article.

• (5) References in this section to the said Article 22 include, subject to any necessary modifications, references to that Article as applied by Article 25A.

Time for bringing proceedings

5

• (1) No action against a carrier's servant or agent which arises out of damage to which the amended Convention as applied by this Order relates shall, if he was acting within the scope of his employment, be brought after more than two years, reckoned from the date of arrival at the destination or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

• (2) Article 29 in Part I of schedule 2 and in Part I of schedule 4 to this Order shall not be read as applying to any proceedings for contribution between tortfeasors, but no action shall be brought by a tortfeasor to obtain a contribution from a carrier in respect of a tort to which the said Article 29 applies after the expiration of two years from the time when judgment is obtained against the person seeking to obtain the contribution.

• (3) The foregoing provisions of this section and the provisions of the said Article 29 shall have effect as if references in those provisions to an action included references to an arbitration.

ANNEX TO PART I OF SCHEDULE 1

1

• (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.

• (2) For the purposes of this paragraph the following shall be taken to be the members of the passenger's family, that is to say, the passenger's wife or husband, parents, grandparents, children and grandchildren and any person who is, or is the issue of, a brother, sister, uncle or aunt of the passenger.

• (3) In deducing any relationship for the purposes of this paragraph—

• (a) an adopted person shall be treated as the child of the person or persons by whom he was adopted and not as the child of any other person; and, subject thereto,

• (b) any relationship by affinity shall be treated as a relationship by consanguinity, any relationship of the half blood as a relationship of the whole blood, and the step-child of any person as his child; and

• (c) an illegitimate person shall be treated as a legitimate child of his mother and reputed father.

2

Subject to the provisions of this schedule, 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 paragraph enforceable but only one action shall be brought in respect of the death of any one passenger and every such action by whomsoever brought shall be for the benefit of all such persons so entitled as aforesaid as either are domiciled in the Overseas Territory or, not being domiciled there, express a desire to take the benefit of this action.

PART II — ADAPTED AND MODIFIED PROVISIONS OF ACT OF 1962

Application of provisions of Act of 1961

SCHEDULE 2 — NON-INTERNATIONAL CARRIAGE, AND CARRIAGE OF MAIL AND POSTAL PACKETS

PART I — Application of the amended Convention

The amended Convention as adapted and modified in the form hereinafter set out shall apply in respect of the carriage described in Article 4 of this Order:—

CHAPTER I SCOPE-DEFINITIONS Article 1 1 This schedule applies to all 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. Article 2 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 Article 1. CHAPTER III LIABILITY OF THE CARRIER Article 17 The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Article 18 1 The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air. 2 The carriage by air within the meaning of the preceding paragraph comprises the period during which the baggage or cargo is in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever. 3 The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or 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. Article 19 The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Article 20 The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures. Article 21 If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability. Article 22 1 In the carriage of persons the liability of the carrier for each passenger is limited to the sum of eight hundred and seventy-five thousand francs. Where, in accordance with the law of the court seised of the case, damages may be awarded in the form of periodical payments the equivalent capital value of the said payments shall not exceed eight hundred and seventy-five thousand francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability. 2 a In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that 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 cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier's liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability. 3 As regards objects of which the passenger takes charge himself the liability of the carrier is limited to five thousand francs per passenger. 4 The limits prescribed in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff. The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later. 5 The sums mentioned in francs in this Article shall be deemed to refer to a currency unit consisting of sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. These sums may be converted into national currencies in round figures. Conversion of the sums into national currencies other than gold shall, in case of judicial proceedings, be made according to the gold value of such currencies at the date of the judgment. Article 23 1 Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this 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. 2 Paragraph (1) of this Article shall not apply to provisions governing loss or damage resulting from the inherent defect, quality or vice of the cargo carried. Article 24 1 In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this schedule. 2 In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights. Article 25 The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment. Article 25A 1 If an action is brought against a servant or agent of the carrier arising out of damage to which this schedule relates, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the limits of liability which that carrier himself is entitled to invoke under Article 22. 2 The aggregate of the amounts recoverable from the carrier, his servants and agents, in that case, shall not exceed the said limits. 3 The provisions of paragraphs (1) and (2) of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result. Article 26 1 Receipt by the person entitled to delivery of baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition. 2 In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his disposal. 3 Every complaint must be made in writing despatched within the times aforesaid. 4 Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part. Article 27 In the case of the death of the person liable, an action for damages lies in accordance with the terms of this schedule against those legally representing his estate. Article 29 1 The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. 2 The method of calculating the period of limitation shall be determined by the law of the court seised of the case. Article 30 1 In the case of carriage to be performed by various successive carriers, each carrier who accepts passengers, baggage or cargo is subjected to the rules set out in this schedule, and is deemed to be one of the contracting parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under his supervision. 2 In the case of carriage of this nature, the passenger or his representative can take action only against the carrier who performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey. 3 As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier who performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee. CHAPTER IV PROVISIONS RELATING TO COMBINED CARRIAGE Article 31 1 In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this schedule apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1. 2 Nothing in this schedule shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this schedule are observed as regards the carriage by air. CHAPTER V GENERAL AND FINAL PROVISIONS Article 32 Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this schedule, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless for the carriage of cargo arbitration clauses are allowed, subject to this schedule. Article 33 Nothing contained in this schedule shall prevent the carrier either from refusing to enter into any contract of carriage, or from making regulations which do not conflict with the provisions of this schedule. Article 35 The expression “*days*” when used in this schedule means current days not working days.

PART II — Application of the Guadalajara Convention

The Guadalajara Convention as adapted and modified in the form hereinafter set out shall apply in respect of the carriage described in Article 4 of this Order:—

ARTICLE I

In the Guadalajara Convention as applied by this schedule

• (a) “The Warsaw Convention” means the amended Convention as applied by this schedule.

• (b) “contracting carrier” means a person who as a principal makes an agreement for carriage governed by the Warsaw Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor;

• (c) “actual carrier” means a person, other than the contracting carrier, who, by virtue of authority from the contracting carrier, performs the whole or part of the carriage contemplated in paragraph (b) but who is not with respect to such part a successive carrier within the meaning of the Warsaw Convention. Such authority is presumed in the absence of proof to the contrary.

ARTICLE II

If an actual carrier performs the whole or part of carriage which is governed by the Warsaw Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in the Guadalajara Convention as applied by this schedule, be subject to the rules of the Warsaw Convention , the former for the whole of the carriage contemplated in the agreement, the latter solely for the carriage which he performs.

ARTICLE III

1

The acts and omissions of the actual carrier and of his servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the contracting carrier.

2

The acts and omissions of the contracting carrier and of the 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 thereby or any special declaration of interest in delivery at destination contemplated in Article 22 thereof, shall not affect the actual carrier unless agreed to by him.

ARTICLE IV

Any complaint to be made under the Warsaw Convention to the carrier shall have the same effect whether addressed to the contracting carrier or to the actual carrier.

ARTICLE V

In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of the contracting carrier shall, if he proves that he acted within the scope of his employment, be entitled to avail himself of the limits of liability which are applicable under the Guadalajara Convention as applied by this schedule to the carrier whose servant or agent he is unless it is proved that he acted in a manner which, under the Warsaw Convention, prevents the limits of liability from being invoked.

ARTICLE VI

In relation to the carriage performed by the actual carrier, the aggregate of the amounts recoverable from that carrier and the contracting carrier, and from their servants and agents acting within the scope of their employment, shall not exceed the highest amount which could be awarded against either the contracting carrier or the actual carrier under the Guadalajara Convention as applied by this schedule, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to him.

ARTICLE VII

In relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately.

ARTICLE IX

3

Any clause contained in an agreement for carriage and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by the Guadalajara Convention as applied by this schedule, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless, for the carriage of cargo arbitration clauses are allowed, subject to the said Convention as applied by this schedule.

ARTICLE X

Nothing in the Guadalajara Convention as applied by this schedule shall affect the rights and obligations of the two carriers between themselves.

ARTICLE XI

Nothing herein contained shall impose any liability on the Postmaster General in the United Kingdom or on any postal authority exercising comparable powers in relation to an Overseas Territory.

SCHEDULE 3 — INTERNATIONAL CARRIAGE UNDER THE WARSAW CONVENTION

Sections 2 and 8 of the Act of 1961 as adapted and modified

Designation of High Contracting Parties

2

• (1) Her Majesty may by Order in Council from time to time certify who are the High Contracting Parties to the Warsaw Convention, in respect of what territories they are respectively parties and to what extent they have availed themselves of the provisions of the Additional Protocol to the Warsaw Convention.

• (3) An Order in Council under this section shall, except so far as it has been superseded by a subsequent Order, be conclusive evidence of the matters so certified.

Actions against High Contracting Parties

8

Every High Contracting Party to the Warsaw Convention who has not availed himself of the provisions of the Additional Protocol at the end of the Convention shall, for the purposes of any action brought in a court in an Overseas Territory in accordance with the provisions of Article 28 in Part I of schedule 4 to this Order to enforce a claim in respect of carriage undertaken by him, be deemed to have submitted to the jurisdiction of that court, and accordingly rules of court may provide for the manner in which any such action is to be commenced and carried on; but nothing in this section shall authorise the issue of execution against the property of any High Contracting Party.

SCHEDULE 4 — INTERNATIONAL CARRIAGE UNDER THE WARSAW CONVENTION

1

The amended Convention and the Guadalajara Convention as adapted and modified in the forms set out, respectively, in Part I and Part II of this schedule shall apply in respect of carriage which is “international carriage” as defined in paragraph 2 of this schedule.

2

For the purposes of Article 5 of this Order and of this schedule “international carriage” shall have the meaning assigned to it in Article 1(2) in Part I of this schedule.

PART I — Application of the amended Convention