The Carriage By Air (International and Non-International Carriage) (ln_2003_63) | MT

Malta Government Gazette — Legal Notice 2003 63 — The Carriage By Air (International and Non-International Carriage)

Preamble — The Carriage By Air (International and Non-International Carriage) Open official source

L.N. 63 of 2003

CIVIL AVIATION ACT (CAP. 232)

The Carriage By Air (International and Non-International Carriage)

Order, 2003.

IN exercise of the powers conferred by section 3 of the Civil Aviation Act, the

Minister for Transport and Communications has made the following Order:-

Malta Government Gazette — Legal Notice 2003 63 — The Carriage By Air (International and Non-International Carriage)

Reg. 1 Citation and Commencement — The Carriage By Air (International and Non-International Carriage) Open official source

(1) The title of this Order is The Carriage By Air

(International and Non-International Carriage) Order, 2003.

(2) This Order shall come into force on such date as the

Minister may by notice in the Gazette appoint.

Malta Government Gazette — Legal Notice 2003 63 — The Carriage By Air (International and Non-International Carriage)

First Schedule — The Carriage By Air (International and Non-International Carriage) Open official source

Regulation 3

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR

INTERNATIONAL CARRIAGE BY AIR

THE STATES PARTIES TO THIS CONVENTION

RECOGNIZING the significant contribution of the Convention for the

Unification of Certain Rules Relating to International Carriage by Air signed in

Warsaw on 12 October 1929, hereinafter referred to as the “Warsaw Convention”, and

other related instruments to the harmonization of private international air law;

RECOGNIZING the need to modernize and consolidate the Warsaw

Convention and related instruments;

RECOGNIZING the importance of ensuring protection of the interests of

consumers in international carriage by air and the need for equitable compensation

based on the principle of restitution;

REAFFIRMING the desirability of an orderly development of international air

transport operations and the smooth flow of passengers, baggage and cargo in

accordance with the principles and objectives of the Convention on International Civil

Aviation, done at Chicago on 7 December 1944;

CONVINCED that collective State action for further harmonization and

codification of certain rules governing international carriage by air through a new

Convention is the most adequate means of achieving an equitable balance of interests;

HAVE AGREED AS FOLLOWS

Chapter 1

General Provisions

Article 1 – Scope of Application

1. This Convention applies to all international carriage of persons, baggage or

cargo performed by aircraft for reward. It applies equally to gratuitous carriage by

aircraft performed by an air transport undertaking.

2. For the purposes of this Convention, the expression international

carriage means any carriage in which, according to the agreement between the

parties, the place of departure and the place of destination, whether or not there be

a break in the carriage or a transhipment, are situated either within the territories of

two States 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 Convention.

3. Carriage to be performed by several successive carriers is deemed, for the

purposes of this Convention, to be one undivided carriage if it has been regarded by

the parties as a single operation, whether it had been agreed upon under the form of a

single contract or of a series of contracts, and it does not lose its international

character merely because one contract or a series of contracts is to be performed

entirely within the territory of the same State.

4. This Convention applies also to carriage as set out in Chapter V, subject to the

terms contained therein.

Article 2 – Carriage Performed by State and Carriage of Postal Items

1. This Convention applies to carriage performed by the State or by legally

constituted public bodies provided it falls within the conditions laid down in Article 1.

2. In the carriage of postal items, the carrier shall be liable only to the relevant

postal administration in accordance with the rules applicable to the relationship

between the carriers and the postal administrations.

3. Except as provided in paragraph 2 of this Article, the provisions of this

Convention shall not apply to the carriage of postal items.

Chapter II

Documentation and Duties of the Parties Relating to the

Carriage of Passengers, Baggage and Cargo

Article 3 – Passengers and Baggage

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, and 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

Convention is applicable it governs and may limit the liability of carriers in respect of

death or injury and for destruction or loss, 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 Convention including those relating to

limitation of liability.

Article 4 – Cargo

1. In respect of the carriage of cargo, an air waybill 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 air waybill. 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.

Article 5 – Contents of Air Waybill or Cargo Receipt

The air waybill 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.

Article 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.

Article 7 – Description of Air Waybill

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 air waybill, the

carrier shall be deemed, subject to proof to the contrary, to have done so on behalf of

the consignor.

Article 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 waybills;

(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

Article 4 are used.

Article 9 – Non-compliance with Documentary Requirements

Non-compliance with the provisions of Articles 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.

Article 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 waybill 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

Article 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 Article, 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 Article 4.

Article 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.

Article 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 Article 13. Nevertheless, if the consignee

declines to accept the cargo, or cannot be communicated with, the consignor resumes

its right of disposition.

Article 13 – Delivery of the Cargo

1. Except when the consignor has exercised its right under Article 12, the consignee

is entitled, on arrival of the cargo at the place of destination, to require the carrier to

deliver the cargo to 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.

Article 14 – Enforcement of the Rights of Consignor and Consignee

The consignor and the consignee can respectively enforce all the rights given to them

by Articles 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.

Article 15 – Relations of Consignor and Consignee or Mutual Relations of Third

Parties

1. Articles 12, 13 and 14 do not affect either the relations of the consignor and

the consignee with each other or the mutual relations of third parties whose rights are

derived either from the consignor or from the consignee.

2. The provisions of Articles 12, 13 and 14 can only be varied by express

provision in the air waybill or the cargo receipt.

Article 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

Article 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 Convention the term “baggage” means both

checked baggage and unchecked baggage.

Article 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 Article

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 transhipment, any damage is presumed, subject to proof to the

contrary, to have been the result of an event which took place during the carriage by

air. 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.

Article 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 servant and agents took all measures

that could reasonably be required to avoid the damage or that it was impossible for it

or then to take such measures.

Article 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 Article applies

to all the liability provisions in this Convention, including paragraph 1 of Article 21.

Article 21 – Compensation in Case of Death or Injury of Passengers

1. For damages arising under paragraph 1 of Article 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 Article

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.

Article 22 – Limits of Liability in Relation to Delay, Baggage and Cargo

1. In the case of damage caused by delay as specified in Article 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

that 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 wieght of the

package or packages concerned. Nevertheless, when the destruction, loss, damage of

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 Article 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 Article 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 Article 21 and 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,

including interest. The foregoing provision shall not apply if the amount of 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.

Article 23 – Conversion of Monetary Units

1. The sums mentioned in terms of Special Drawing Right in this Convention

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 judgement. 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

judgement, 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 Article may, at the time of ratification or accession or at any time thereafter,

declare that the limit of liability of the carrier prescribed in Article 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 Article 22; 15,000

monetary units per passenger with respect to paragraph 2 of Article 22; and 250

monetary units per kilogramme with respect to paragraph 3 of Article 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 Article and

the conversion method mentioned in paragraph 2 of this Article 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 Articles 21 and 22 as would result from the

application of the first three sentences of paragraph 1 of this Article. States Parties

shall communicate to the depository the manner of calculation pursuant to paragraph

1 of this Article, or the result of the conversion in paragraph 2 of this Article as the

case may be, when depositing an instrument of ratification, acceptance, approval of

or accession to this Convention and whenever there is a change in either.

Article 24 – Review of Limits

1. Without prejudice to the provisions of Article 25 of this Convention and

subject to paragraph 2 below, the limits of liability prescribed in Articles 21, 22 and

23 shall be reviewed by the Depository 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 this

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 Article 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 State 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 Article, the procedure referred to in

paragraph 2 of this Article 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 per cent 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

Article 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.

Article 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 Convention or to no limit of liability

whatsoever.

Article 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 Convention shall be null and void, but the nullity of any

such provision does not involve the nullity of the whole contract, which shall remain

subject to the provisions of this Convention.

Article 27 – Freedom to Contract

Nothing contained in this Convention shall prevent the carrier from refusing to enter

into any contract of carriage, from waiving any defences available under the

Convention, or from laying down conditions which do not conflict with the provisions

of this Convention.

Article 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 a recognition of liability and may be offset against any amounts

subsequently paid as damages by the carrier.

Article 29 – Basis of Claims

In the carriage of passengers, baggage and cargo, any action for damages, however

founded, whether under this Convention or in contract or in tort or otherwise, can only

be brought subject to the conditions and such limits of liability as are set out in this

Convention without prejudice to the question as to who are the persons who have the

right to bring suit and what are their respective rights. In any such action, punitive,

exemplary or any other non-compensatory damages shall be recoverable.

Article 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 the Convention 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

Convention.

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 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 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 Article 3 and paragraph 2 of Article 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.

Article 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 Convention against those legally representing his or her estate.

Article 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

Article, 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,

“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;

“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.

4. Questions of procedure shall be governed by the law of the court seised of the

case.

Article 34 - Arbitration

1. Subject to the provisions of this Article, the parties to the contract of carriage

for cargo may stipulate that any dispute relating to the liability of the carrier under this

Convention 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 Article 33.

3. The arbitrator or arbitration tribunal shall apply the provisions of this

Convention.

4. The provisions of paragraphs 2 and 3 of this Article 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.

Article 35 – Limitation of Actions

1. 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.

2. The method of calculating that period shall be determined by the law of the

court seised of the case.

Article 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 Article 1, each carrier which

accepts passengers, baggage or cargo is subject to the rules set out in this Convention

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.

Article 37 – Right of Recourse against Third Parties

Nothing in this Convention shall prejudice the question whether a person liable for

damage in accordance with its provisions has a right of recourse against any other

person.

Chapter IV

Combined Carriage

Article 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 Convention shall, subject to paragraph 4

of Article 18, apply only to the carriage by air, provided that the carriage by air falls

within the terms of Article 1.

2. Nothing in this Convention shall prevent the parties in the case of combined

carriage from inserting in the document of air carriage conditions relating to other

modes of carriage, provided that the provisions of this Convention are observed as

regards the carriage by air.

Chapter V

Carriage by Air Performed by a Person

Other than the Contracting Carrier

Article 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

Convention 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 Convention. Such authority shall be presumed in the absence of proof

to the contrary.

Article 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 Article 39, is governed by this Convention, both the contracting

carrier and the actual carrier shall, except as otherwise provided in this Chapter, be

subject to the rules of this Convention, the former for the whole of the carriage

contemplated in the contract, the latter solely for the carriage which it performs.

Article 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 Articles 21, 22, 23 and 24. Any special

agreement under which the contracting carrier assumes obligations not imposed by

this Convention or any waiver of rights or defences conferred by this Convention or

any special declaration of interest in delivery at destination contemplated in Article 22

shall not affect the actual carrier unless agreed to by it.

Article 42 – Addressee of Complaints and Instructions

Any complaint to be made or instruction to be given under this Convention to the

carrier shall have the same effect whether addressed to the contracting carrier or to the

actual carrier. Nevertheless, instructions referred to in Article 12 shall only be

effective if addressed to the contracting carrier.

Article 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 Convention 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 Convention.

Article 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 Convention, but none of the persons mentioned shall be liable

for a sum in excess of the limit applicable to that person.

Article 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, the procedure and effects being governed by the law of the court

seised of the case.

Article 46 – Additional Jurisdiction

Any action for damages contemplated in Article 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

Article 33, or before the court having jurisdiction at the place where the actual carrier

has its domicile or its principal place of business.

Article 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.

Article 48 – Mutual Relations of Contracting and Actual Carriers

Except as provided in Article 45, 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

Article 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 Convention, whether by deciding the law to be applied, or by altering

the rules as to jurisdiction, shall be null and void.

Article 50 – Insurance

States Parties shall require their carriers to maintain adequate insurance covering their

liability under this Convention. 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 Convention.

Article 51 – Carriage Performed in Extraordinary Circumstances

The provisions of Articles 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.

Article 52 – Definition of Days

The expression “days” when used in this Convention means calendar days, not

working days.

Chapter VII

Final Clauses

Article 53 – Signature, Ratification and Entry into Force

1. This Convention shall be open for signature in Montreal on 28 May 1999 by

States participating in the International Conference on Air Law held at Montreal from

10 to 28 May 1999. After 28 May 1999, the Convention shall be open to all States for

signature at the Headquarters of the International Civil Aviation Organization in

Montreal until it enters into force in accordance with paragraph 6 of this Article.

2. This Convention shall similarly be open for signature by Regional Economic

Integration Organisations. For the purpose of this Convention, a “Regional Economic

Integration Organisation” means any organisation 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 Organisation. For the purpose of Article

24, the references to “a majority of the States Parties” and “one-third of the States

Parties” shall not apply to a Regional Economic Integration Organisation.

3. This Convention shall be subject to ratification by States and by Regional

Economic Integration Organisations which have signed it.

4. Any State or Regional Economic Integration Organisation which does not sign

this Convention may accept, approve or accede to it at any time.

5. Instruments of ratification, acceptance, approval or accession shall be

deposited with the International Civil Aviation Organisation, which is hereby

designated the Depositary.

6. This 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 Depositary between the States which have deposited such instrument. An

instrument deposited by a Regional Economic Integration Organisation shall not be

counted for the purpose of this paragraph.

7. For other States and for other Regional Economic Integration Organisations,

this convention shall take effect sixty days following the date of deposit of the

instrument of ratification, acceptance, approval or accession.

The Depositary shall promptly notify all signatories and States Parties of

each signature of this Convention and date thereof;

each deposit of an instrument of ratification, acceptance, approval or

accession and date thereof;

the date of entry into force of this Convention;

the date of the coming into force of any revision of the limits of

liability established under this Convention;

any denunciation under Article 54.

Article 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 Depositary.

Article 55 – Relationship with other Warsaw Convention Instruments

This Convention shall prevail over any rules which apply to international carriage by

between States Parties to this Convention by virtue of those States commonly

being Party to

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);

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);

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);

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 8 March 1971 (hereinafter

called the Guatemala City Protocol);

-

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 by both The Hague Protocol and the

Guatemala City Protocol Signed at Montreal on 25 September 1975

(hereinafter called the Montreal Protocols); or

-

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-paragraphs

(a) to (e) above.

Article 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 at the time of

signature, ratification, acceptance, approval or accession declare that this Convention

shall extend to all its territorial units or only to 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 Depositary and shall state

expressly the territorial units to which the Convention applies.

1. In relation to a State Party which has made such a declaration

-

references in Article 23 to “national currency” shall be construed as

referring to the currency of the relevant territorial unit of that State; and

-

the reference in Article 28 to “national law” shall be construed as referring

to the law of the relevant territorial unit of that State.

Article 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 Depositary that this Convention shall

not apply to

-

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

-

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.

IN WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly

authorized, have signed this Convention.

DONE at Montreal on the 28 th day of May of the year one thousand nine

hundred and ninety-nine in the English, Arabic, Chinese, French, Russian and

Spanish languages, all texts being equally authentic. This Convention shall

remain deposited in the archives of the International Civil Aviation

Organization, and certified copies thereof shall be transmitted by the

Depositary to all States Parties to this Convention, as well as to all States

Parties to the Warsaw Convention, The Hague Protocol, the Guadalajara

Convention, the Guatemala City Protocol, and the Montreal Protocols.

Malta Government Gazette — Legal Notice 2003 63 — The Carriage By Air (International and Non-International Carriage)

Reg. 2 Interpretation — The Carriage By Air (International and Non-International Carriage) Open official source

In this Order, unless the context otherwise requires-

“air transport undertaking” means a person whose business

includes the carriage by air of passengers, mail and/or cargo

for hire or reward.

“carrier” means an air transport undertaking with a valid

operating licence.

“Convention” means the Convention for the Unification of

Certain Rules for International Carriage By Air done at

Montreal on the 28 th May 1999 as reproduced in the First

Schedule to this Order.

“Operating licence” means an authorisation by the State

responsible to an air transport undertaking permitting it to

carry out carriage by air of passengers, mail and/or cargo as

stated in the operating licence for hire or reward.

“SDR” means a special drawing right as defined by the

International Monetary Fund.

Malta Government Gazette — Legal Notice 2003 63 — The Carriage By Air (International and Non-International Carriage)

Second Schedule — The Carriage By Air (International and Non-International Carriage) Open official source

Regulation 4

Non-international carriage

Part I –Application of the Montreal Schedule

The Montreal Schedule as set out in the First Schedule shall apply in respect of non-

international carriage subject to the following exceptions, adaptations and

modifications-

For “Convention” wherever it appears, there shall be substituted “Schedule”.

In Article 1.1 the word “international” shall be omitted.

Article 1.2 and 1.3 shall not apply.

Save for Article 3.1 (b) Chapter II shall apply and Article 3.4 shall read as

follows

“The passenger shall be given written notice to the effect that this Schedule is

applicable and it governs and limits the liability of carriers in respect of death

or injury and for destruction or loss, or damage to, baggage and for delay.”.

In Article 23.1 the third and fourth sentences shall be omitted.

For Article 23.2 the following shall be substituted –

“The value on a particular day of one Special Drawing Right shall be treated as

equal to such a sum in Maltese Liri as the International Monetary Fund have

fixed as being the equivalent of one Special Drawing Right –

-

for that day; or

- if no sum has been fixed for that day, for the last day before that

day for which a sum has been so fixed.”.

For Article 23.3 the following shall be substituted –

“A certificate given by or on behalf of the Central Bank of Malta

stating –

-

that a particular sum in Maltese liri has been fixed by the

International Monetary Fund as referred to in paragraph 2 for a

particular day; or

-

that no sum has been so fixed for a particular day and that a

particular sum in Maltese Liri has been so fixed for a day which is the

last day for which a sum has been so fixed before the particular day,

shall be conclusive evidence of those matters for the purposes of this article;

and a document purporting to be such a certificate shall in any proceedings be

received in evidence and, unless the contrary is proved, be deemed to be such

a certificate.”.

Article 24 shall be omitted.

Article 33 shall not apply.

Article 34.2 shall not apply.

In Article 36.1 the words from “and” where it first occurs to “Article 1” shall

In Article 42 the second sentence shall not apply.

In Article 45 the second sentence shall not apply.

Article 46 shall not apply.

Article 51 shall not apply.

Articles 53 to 57 shall not apply.

Part II

For convenience of reference the Montreal Convention, with the exceptions,

adaptations and modifications made by this Schedule are here set out

Non-international carriage

Chapter I

General Provision

Article 1 – Scope of Application

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.

4. This Schedule applies also to carriage as set out in Chapter V, subject to the

terms contained therein.

Article 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 Article 1.

2. In the carriage of postal items, the carrier shall be liable only to the relevant

postal administration in accordance with the rules applicable to the relationship

between the carriers and the postal administrations.

3. Except as provided in paragraph 2 of this Article, the provisions of this

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

Article 3 – Passengers and Baggage

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;

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.

The carrier shall deliver to the passenger a baggage identification tag for each

piece of checked baggage.

The passenger shall be given written notice to the effect that this Schedule is

applicable and it governs and limits the liability of carriers in respect of death or

injury and for destruction or loss, 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.

Chapter III

Liability of the Carrier and Extent of Compensation for Damage

Article 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.

Article 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

-

inherent defect, quality or vice of that cargo;

-

defective packing of that cargo performed by a person other than the

carrier or its servant or agents;

-

an act of war or an armed conflict;

-

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 Article

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 transhipment, any damage is presumed, subject to proof to the

contrary, to have been the result of an event which took place during the carriage by

air. If a carrier, without the consent of 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.

Article 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 servant 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.

Article 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 by the negligence

or other wrongful act or omission of that passenger. This Article applies to all the

liability provisions in this Schedule, including paragraph 1 of Article 21.

Article 21 – Compensation in Case of Death or Injury of Passengers

1. For damages arising under paragraph 1 of Article 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 Article

17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights

if the carrier proves that

- such damage was not due to the negligence or other wrongful act or

omission of the carrier or its servants or agents; or

- such damage was solely due to the negligence or other wrongful act or

omission of a third party.