Carriage) (Amendment) Order, 2006

Suppliment tal-Gazzetta tal-Gvern ta’ Malta, Nru. 17,945, 21 ta’ Lulju, 2006

L.N. 154 of 2006

CIVIL AVIATION ACT

(CAP. 232)

The Carriage by Air (International and Non-International

Carriage) (Amendment) Order, 2006

IN exercise of the powers conferred by article 3 of the Civil

Aviation Act, the Minister responsible for Competitiveness and

Communications has made the following Order>-

The title of this Order is the Carriage by Air (International Citation.

and Non-International Carriage) (Amendment) Order, 2006, and it shall

be read and construed as one with the Carriage by Air (International

and Non-International Carriage), Order, 2003, hereunder referred to as L.N. 63 of 2003.

“the principal Order.”

Article 2 of the principal Order shall be amended as follows> Amends article 2 of

the principal Order.

(a) immediately after the definition “air transport

undertaking” there shall be inserted the following definition>-

“ “Carriage by Air Conventions” means>-

(a) the Convention known as the Montreal

Convention set out in the First Schedule< and

(b) the Convention known as the Warsaw

Convention set out in the Third Schedule<”<

(b) immediately after the definition “carrier” there shall be

inserted the following definition>

“ “Community air carrier” means an air carrier with a

valid operating licence granted by a Member State of the

European Union in accordance with the provisions of

Regulation (EEC) No. 2407#92<”<

(c) for the term “Convention” there shall be substituted the

term “Montreal Convention”<

(d) immediately before the definition “Montreal

Convention”, as amended there shall be inserted the following

definition>-

“ “European Parliament and Council Regulation No.

889#2002” means the European Parliament and Council

Regulation No. 889 of 13th May 2002 amending Council

Regulation EC No. 2027#97 on air carrier liability in the event

of accidents<”< and

(e) immediately after the definition “SDR” there shall be

inserted the following definition>

“ “Warsaw Convention” means the Convention for the

Unification of Certain Rules relating to International Carriage

by Air, signed at Warsaw on 12 October 1929 as reproduced

in the Third Schedule.”.

For article 3 of the principal Order there shall be substituted

the following new article>-

3. (1) The applicable provisions of the Carriage by

“Applicability

Carriage by Air Conventions have the force of law in Malta in relation to

any carriage by air to which they apply, irrespective of the

nationality of the aircraft performing that carriage.

(2) Sub-article (1) hereof does not apply in relation to

Community air carriers to the extent that the provisions of

the European Parliament and Council Regulation No.

889#2002 have the force of law in Malta.”.

In article 4 of the principal Order for the words “of the

Convention” there shall be substituted the words “of the Montreal

Convention”.

For article 5 of the principal Order there shall be substituted

the following new article>

“Applicability

5. (1) Any liability imposed by Article 17 of

of Article 17

theWarsaw

Convention or by Article 17 of the Montreal

Convention on a carrier, as the case may be, in respect of the

or Article 17 death or wounding or any other bodily injury of a passenger,

shall be in substitution for any liability of the carrier in respect

Convention. of the death or wounding or any other bodily injury of that

passenger under Maltese law.

(2) The provisions of sub-article (1) hereof shall

also apply in case of non-international carriage where the

Convention applies.”.

In the First Schedule to the principal Order, for the words Amends the First

Schedule to the

“(Regulation 3)” immediately before the title of the Convention, there principal Order.

shall be substituted the words “(Regulation 2)”.

Immediately after the Second Schedule to the principal Order Adds Third

Schedule to the

there shall be added the following new schedule>-

principal Order.

“THIRD SCHEDULE

(Regulation 2)

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES

RELATING TO INTERNATIONAL CARRIAGE BY AIR, SIGNED AT

WARSAW ON 12 OCTOBER 1929 (WARSAW CONVENTION)

CHAPTER I

SCOPE – DEFINITIONS

Article 1

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

goods 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 contract made by the parties, the place

of departure and the place of destination, whether or not there be a break in the carriage

or a transhipment, are situated either within the territories of two High Contracting

Parties, or within the territory of a single High Contracting Party, if there is an agreed

stopping place within a territory subject to the sovereignty, suzerainty, mandate or

authority of another Power, even though that Power is not a party to this Convention.

A carriage without such an agreed stopping place between territories subject to the

sovereignty, suzerainty, mandate or authority of the same High Contracting Party is

not deemed to be international for the purposes of this Convention.

3. A carriage to be performed by several successive air 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

a territory subject to the sovereignty, suzerainty, mandate or authority of the same

High Contracting Party.

Article 2

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. This Convention does not apply to carriage performed under the terms of any

international postal Convention.

CHAPTER II

DOCUMENTS OF CARRIAGE

Section I - Passenger Ticket

Article 3

1. For the carriage of passengers the carrier must deliver a passenger ticket

which shall contain the following particulars>-

(a) the place and date of issue<

(b) the place of departure and of destination<

(c) the agreed stopping places, provided that the carrier may reserve the

right to alter the stopping places in case of necessity, and that if he exercises that

right, the alteration shall not have the effect of depriving the carriage of its

international character<

(d) the name and address of the carrier or carriers<

(e) a statement that the carriage is subject to the rules relating to liability

established by this Convention.

2. The absence, irregularity or loss of the passenger ticket does not affect the

existence or the validity of the contract of carriage, which shall none the less be subject

to the rules of this Convention. Nevertheless, if the carrier accepts a passenger without

a passenger ticket having been delivered he shall not be entitled to avail himself of

those provisions of this Convention which exclude or limit his liability.

Section II - Luggage Ticket

Article 4

1. For the carriage of luggage, other than small personal objects of which the

passenger takes charge himself, the carrier must deliver a luggage ticket.

2. The luggage ticket shall be made out in duplicate, one part for the passenger

and the other part for the carrier.

3. The luggage ticket shall contain the following particulars>-

(a) the place and date of issue<

(b) the place of departure and of destination<

(c) the name and address of the carrier or carriers<

(d) the number of the passenger ticket<

(e) a statement that delivery of the luggage will be made to the bearer of

the luggage ticket<

(f)

the number and weight of the packages<

(g) the amount of the value declared in accordance with Article 22(2)<

(h) a statement that the carriage is subject to the rules relating to liability

established by this Convention.

4. The absence, irregularity or loss of the luggage ticket does not affect the

existence or the validity of the contract of carriage, which shall none the less be subject

to the rules of this Convention. Nevertheless, if the carrier accepts luggage without a

luggage ticket having been delivered, or if the luggage ticket does not contain the

particulars set out at (d), (f) and (h) above, the carrier shall not be entitled to avail

himself of those provisions of the Convention which exclude or limit his liability.

Section III - Air Consignment Note

Article 5

1. Every carrier of goods has the right to require the consignor to make out and

hand over to him a document called an “air consignment note”< every consignor has

the right to require the carrier to accept this document.

2. The absence, irregularity or loss of this document does not affect the existence

or the validity of the contract of carriage which shall, subject to the provisions of

Article 9, be none the less governed by the rules of this Convention.

Article 6

1. The air consignment note shall be made out by the consignor in three original

parts and be handed over with the goods.

2. The first part shall be marked “for the carrier,” and shall be signed by the

consignor. The second part shall be marked “for the consignee”< it shall be signed by

the consignor and by the carrier and shall accompany the goods. The third part shall be

signed by the carrier and handed by him to the consignor after the goods have been

accepted.

3. The carrier shall sign on acceptance of the goods.

4. The signature of the carrier may be stamped< that of the consignor may be

printed or stamped.

5. If, at the request of the consignor, the carrier makes out the air consignment

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

the consignor.

Article 7

The carrier of goods has the right to require the consignor to make out separate

consignment notes when there is more than one package.

Article 8

The air consignment note shall contain the following particulars>-

(a) the place and date of its execution<

(b) the place of departure and of destination<

(c) the agreed stopping places, provided that the carrier may reserve the

right to alter the stopping places in case of necessity, and that if he exercises that

right the alteration shall not have the effect of depriving the carriage of its

international character<

(d) the name and address of the consignor<

(e) the name and address of the first carrier<

(f)

the name and address of the consignee, if the case so requires<

(g) the nature of the goods<

(h) the number of the packages, the method of packing and the particular

marks or numbers upon them<

(i) the weight, the quantity and the volume or dimensions of the goods<

(j) the apparent condition of the goods and of the packing<

(k) the freight, if it has been agreed upon, the date and place of payment,

and the person who is to pay it<

(l) if the goods are sent for payment on delivery, the price of the goods,

and, if the case so requires, the amount of the expenses incurred<

(m) the amount of the value declared in accordance with Article 22 (2)<

(n) the number of parts of the air consignment note<

(o) the documents handed to the carrier to accompany the air consignment

note<

(p) the time fixed for the completion of the carriage and a brief note of the

route to be followed, if these matters have been agreed upon<

(q) a statement that the carriage is subject to the rules relating to liability

established by this Convention.

Article 9

If the carrier accepts goods without an air consignment note having been made

out, or if the air consignment note does not contain all the particulars set out in Article

8(a) to (i) inclusive and (q), the carrier shall not be entitled to avail himself of the

provisions of this Convention which exclude or limit his liability.

Article 10

1. The consignor is responsible for the correctness of the particulars and

statements relating to the goods which he inserts in the air consignment note.

2. The consignor will be liable for all damage suffered by the carrier or any

other person by reason of the irregularity, incorrectness or incompleteness of the said

particulars and statements.

Article 11

1. The air consignment note is prima facie evidence of the conclusion of the

contract, of the receipt of the goods and of the conditions of carriage.

2. The statements in the air consignment note relating to the weight, dimensions

and packing of the goods, as well as those relating to the number of packages, are

prima facie evidence of the facts stated< those relating to the quantity, volume and

condition of the goods do not constitute evidence against the carrier except so far as

they both have been, and are stated in the air consignment note to have been, checked

by him in the presence of the consignor, or relate to the apparent condition of the

goods.

Article 12

1. Subject to his liability to carry out all his obligations under the contract of

carriage, the consignor has the right to dispose of the goods by withdrawing them at

the aerodrome of departure or destination, or by stopping them in the course of the

journey on any landing, or by calling for them to be delivered at the place of destination

or in the course of the journey to a person other than the consignee named in the air

consignment note, or by requiring them to be returned to the aerodrome of departure.

He must not exercise this right of disposition in such a way as to prejudice the carrier

or other consignors and he must repay any expenses occasioned by the exercise of this

right.

2. If it is impossible to carry out the orders of the consignor the carrier must so

inform him forthwith.

3. If the carrier obeys the orders of the consignor for the disposition of the

goods without requiring the production of the part of the air consignment note delivered

to the latter, he will be liable, without prejudice to his right of recovery from the

consignor, for any damage which may be caused thereby to any person who is lawfully

in possession of that part of the air consignment note.

4. The right conferred on the consignor ceases at the moment when that of the

consignee begins in accordance with Article 13. Nevertheless, if the consignee declines

to accept the consignment note or the goods, or if he cannot be communicated with,

the consignor resumes his right of disposition.

Article 13

1. Except in the circumstances set out in the preceding Article, the consignee is

entitled, on arrival of the goods at the place of destination, to require the carrier to hand

over to him the air consignment note and to deliver the goods to him, on payment of

the charges due and on complying with the conditions of carriage set out in the air

consignment note.

2. Unless it is otherwise agreed, it is the duty of the carrier to give notice to the

consignee as soon as the goods arrive.

3. If the carrier admits the loss of the goods, or if the goods have not arrived at

the expiration of seven days after the date on which they ought to have arrived, the

consignee is entitled to put into force against the carrier the rights which flow from the

contract of carriage.

Article 14

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

them by Articles 12 and 13, each in his own name, whether he is acting in his own

interest or in the interest of another, provided that he carries out the obligations imposed

by the contract.

Article 15

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

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

derived either from the consignor or from the consignee.

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

provision in the air consignment note.

Article 16

1. The consignor must furnish such information and attach to the air consignment

note such documents as are necessary to meet the formalities of customs, octroi or

police before the goods can be delivered to the consignee. The consignor is liable to

the carrier for any damage occasioned by the absence, insufficiency or irregularity of

any such information or documents, unless the damage is due to the fault of the carrier

or his agents.

2. The carrier is under no obligation to enquire into the correctness or sufficiency

of such information or documents.

CHAPTER III

LIABILITY OF THE CARRIER

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 luggage or any goods, if the occurrence which

caused the damage so sustained took place during the carriage by air.

2. The carriage by air within the meaning of the preceding paragraph comprises

the period during which the luggage or goods are in charge of the carrier, whether in an

aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in

any place whatsoever.

3. The period of the carriage by air does not extend to any carriage by land, by

sea or by river performed outside an aerodrome. If, however, such a carriage takes

place in the performance of a contract for carriage by air, for the purpose of loading,

delivery or 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, luggage or goods.

Article 20

1. The carrier is not liable if he proves that he and his agents have taken all

necessary measures to avoid the damage or that it was impossible for him or them to

take such measures.

2. In the carriage of goods and luggage the carrier is not liable if he proves that

the damage was occasioned by negligent pilotage or negligence in the handling of the

aircraft or in navigation and that, in all other respects, he and his agents have taken all

necessary measures to avoid the damage.

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 passengers the liability of the carrier for each passenger is

limited to the sum of 125,000 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 125,000 francs.

Nevertheless, by special contract, the carrier and the passenger may agree to a higher

limit of liability.

2. In the carriage of registered luggage and of goods, the liability of the carrier

is limited to a sum of 250 francs per kilogram, unless the consignor has made, at the

time when the package was handed over to the carrier, a special declaration of the

value at delivery and has paid a supplementary sum if the case so requires. In that case

the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves

that that sum is greater than the actual value to the consignor at delivery.

3. As regards objects of which the passenger takes charge himself the liability

of the carrier is limited to 5,000 francs per passenger.

4. The sums mentioned above shall be deemed to refer to the French franc

consisting of 65 1 # 2 milligrams gold of millesimal fineness 900. These sums may be

converted into any national currency in round figures.

Article 23

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 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

Convention.

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

1. The carrier shall not be entitled to avail himself of the provisions of this

Convention which exclude or limit his liability, if the damage is caused by his wilful

misconduct or by such default on his part as, in accordance with the law of the Court

seised of the case, is considered to be equivalent to wilful misconduct.

2. Similarly the carrier shall not be entitled to avail himself of the said provisions,

if the damage is caused as aforesaid by any agent of the carrier acting within the scope

of his employment.

Article 26

1. Receipt by the person entitled to delivery of luggage or goods without

complaint is prima facie evidence that the same have been delivered in good condition

and in accordance with the document of carriage.

2. In the case of damage, the person entitled to delivery must complain to the

carrier forthwith after the discovery of the damage, and, at the latest, within three days

from the date of receipt in the case of luggage and seven days from the date of receipt

in the case of goods. In the case of delay the complaint must be made at the latest

within fourteen days from the date on which the luggage or goods have been placed at

his disposal.

3. Every complaint must be made in writing upon the document of carriage or

by separate notice in writing 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 Convention against those legally representing his estate.

Article 28

1. An action for damages must be brought, at the option of the plaintiff, in the

territory of one of the High Contracting Parties, either before the Court having

jurisdiction where the carrier is ordinarily resident, or has his principal place of business,

or has an establishment by which the contract has been made or before the Court

having jurisdiction at the place of destination.

2. Questions of procedure shall be governed by the law of the Court seised of

the case.

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 and

falling within the definition set out in the third paragraph of Article 1, each carrier who

accepts passengers, luggage or goods is subjected to the rules set out in this Convention,

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 casewhere, by express agreement, the first carrier has

assumed liability for the whole journey.

3. As regards luggage or goods, the passenger or consignor will have a right of

action against the first carrier, and the passenger or consignee who is entitled to delivery

will have a right of action against the last carrier, and further, each may take action

against the carrier who performed the carriage during which the destruction, loss,

damage or delay took place. These carriers will be jointly and severally liable to the

passenger or to the consignor or consignee.

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 Convention 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

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

to jurisdiction, shall be null and void. Nevertheless for the carriage of goods arbitration

clauses are allowed, subject to this Convention, if the arbitration is to take place within

one of the jurisdictions referred to in the first paragraph of Article 28.

Article 33

Nothing contained in this Convention 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 Convention.

Article 34

This Convention does not apply to international carriage by air performed by way

of experimental trial by air navigation undertakings with the view to the establishment

of a regular line of air navigation, nor does it apply to carriage performed in extraordinary

circumstances outside the normal scope of an air carrier’s business.

Article 35

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

working days.

Article 36

The Convention is drawn up in French in a single copy which shall remain

deposited in the archives of the Ministry for Foreign Affairs of Poland and of which

one duly certified copy shall be sent by the Polish Government to the Government of

each of the High Contracting Parties.

Article 37

1. This Convention shall be ratified. The instruments of ratification shall be

deposited in the archives of the Ministry for Foreign Affairs of Poland, which will

notify the deposit to the Government of each of the High Contracting Parties.

2. As soon as this Convention shall have been ratified by five of the High

Contracting Parties it shall come into force as between them on the ninetieth day after

the deposit of the fifth ratification. Thereafter it shall come into force between the

High Contracting Parties who shall have ratified and the High Contracting Party who

deposits his instrument of ratification on the ninetieth day after the deposit.

3. It shall be the duty of the Government of the Republic of Poland to notify to

the Government of each of the High Contracting Parties the date on which this

Convention comes into force as well as the date of the deposit of each ratification.

Article 38

1. This Convention shall, after it has come into force, remain open for accession

by any State.

2. The accession shall be effected by a notification addressed to the Government

of the Republic of Poland, which will inform the Government of each of the High

Contracting Parties thereof.

3. The accession shall take effect as from the ninetieth day after the notification

made to the Government of the Republic of Poland.

Article 39

1. Any one of the High Contracting Parties may denounce this Convention by a

notification addressed to the Government of the Republic of Poland, which will at

once inform the Government of each of the High Contracting Parties.

2. Denunciation shall take effect six months after the notification of denunciation,

and shall operate only as regards the Party who shall have proceeded to denunciation.

Article 40

1. Any High Contracting Party may, at the time of signature or of deposit of

ratification or of accession declare that the acceptance which he gives to this Convention

does not apply to all or any of his colonies, protectorates, territories under mandate, or

any other territory subject to his sovereignty or his authority, or any territory under his

suzerainty.

2. Accordingly any High Contracting Party may subsequently accede separately

in the name of all or any of his colonies, protectorates, territories under mandate or any

other territory subject to his sovereignty or to his authority or any territory under his

suzerainty which has been thus excluded by his original declaration.

3. Any High Contracting Party may denounce this Convention, in accordance

with its provisions, separately or for all or any of his colonies, protectorates, territories

under mandate or any other territory subject to his sovereignty or to his authority, or

any other territory under his suzerainty.

Article 41

Any High Contracting Party shall be entitled not earlier than two years after the

coming into force of this Convention to call for the assembling of a new international

Conference in order to consider any improvements which may be made in this

Convention. To this end he will communicate with the Government of the French

Republic which will take the necessary measures to make preparations for such

Conference. This Convention done at Warsaw on the 12th October, 1929, shall remain

open for signature until the 31st January, 1930

(Here follow the signatures on behalf of the following countries>- Germany,

Austria, Belgium, Brazil, Denmark, Spain, France, Great Britain and Northern Ireland,

the Commonwealth of Australia, the Union of South Africa, Greece, Italy, Japan, Latvia,

Luxembourg, Norway, the Netherlands, Poland, Romania, Switzerland, Czecho-

Slovakia, the Union of Soviet Socialist Republics, and Yugoslavia.)

“ADDITIONAL PROTOCOL

(With reference to Article 2)

The High Contracting Parties reserve to themselves the right to declare at the

time of ratification or of accession that the first paragraph of Article 2 of this Convention

shall not apply to international carriage by air performed directly by the State, its

colonies, protectorates or mandated territories or by any other territory under its

sovereignty, suzerainty or authority.”

(This additional Protocol was signed on behalf of the same countries as those

above mentioned.)

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press