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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CIVIL AVIATION LEGISLATION AMENDMENT
(1999 MONTREAL CONVENTION AND OTHER MEASURES) BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure, Transport, Regional Development
and Local Government, the Honourable Anthony Albanese, MP)
CIVIL AVIATION LEGISLATION AMENDMENT (1999 MONTREAL
CONVENTION AND OTHER MEASURES) BILL 2008
OUTLINE
The Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures)
Bill amends the Civil Aviation (Carriers' Liability) Act 1959, the Air Accidents
(Commonwealth Government Liability) Act 1963 and the Civil Aviation Act 1988 to give
effect to the Convention for the Unification of Certain Rules for International Carriage by Air,
done at Montreal on 28 May 1999 (the 1999 Montreal Convention). This will enable
Australia to accede to the 1999 Montreal Convention.
The 1999 Montreal Convention provides a modern and consolidated framework for the
liability of air carriers for:
· injury or death of a passenger,
· loss or damage to cargo and baggage, and
· damage caused by delay in the scheduled arrival of a passenger, baggage and freight,
which occurs in the course of international air carriage.
The Convention provides for a two-tier system of liability. Applicants will be able to claim
up to 100 000 Special Drawing Rights (SDRs) on a strict liability basis - (i.e. they will not
need to prove that the carrier was at fault). Damages above the 100 000 SDR threshold are
available to the claimant, unless the air carrier is able to prove that either the damage was not
caused by the negligence or other wrongful act or omission of the carrier, its servants or
agents, or was solely due to the negligence or other wrongful act or omission of a third party.
(The Special Drawing Right is a monetary unit of the International Monetary Fund.
According to the rate of exchange published by the Reserve Bank of Australia, one Australian
Dollar was worth 0.5810 Special Drawing Rights on 25 February 2008, leading to a first tier
threshold of approximately $172 000).
The 1999 Montreal Convention will eventually replace the existing international
arrangements for carriers' liability contained within the Warsaw System. This consists of
various international conventions and protocols built upon the Convention for the Unification
of Certain Rules for International Carriage by Air, done at Warsaw on 12 October 1929. The
1999 Montreal Convention entered into force between States Parties on 4 November 2003.
As of 14 February 2008, there were 86 States Parties to the Convention, including most of
Australia's key aviation partners such as the United States, New Zealand, Canada, Japan, the
United Arab Emirates and the European Community and its member countries.
The 1999 Montreal Convention goes further than merely consolidating existing Warsaw
System instruments, which are given effect by existing provisions of the Carriers' Liability
Act. The 1999 Montreal Convention includes a number of innovative mechanisms,
refinements and reforms. It substantially improves consumer protection in international
carriage by air and modernises the smooth flow of passengers, baggage and cargo. Most
importantly, it improves the international regime for air carriers' liability, particularly in
relation to injury or death.
Consumers who seek damages from carriers will also benefit from the provision in the
Montreal Convention for a `fifth jurisdiction'. This would give most Australian citizens
access to Australian courts to pursue claims in relation to flights to which the Montreal
Convention applies.
The Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures)
Bill 2008 will insert a definition of family member into the Carriers' Liability Act. The
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definition of family member will include a passenger's spouse, de facto spouse; parent, step-
parent, grandparent; child, step-child, ward, grandchild; sibling, step-brother or step-sister,
half brother or half-sister; or a person who is wholly or partly dependent on the passenger for
financial support and is a foster-sibling, foster-child or guardian.
The Bill will use this new definition to affect the Carriers' Liability Act in several ways.
Firstly, it will expand the class of relatives of a passenger killed in an air incident who may
bring an action against a domestic carrier, or an international carrier flying to or from
Australia, to enforce liability under the Carriers' Liability Act. Step-siblings and wards of the
passenger and any foster-sibling, foster-child or guardian who is wholly or partly dependent
on the passenger for financial support will now also be able to enforce liability under the
Carriers' Liability Act
Secondly, it will ensure that all of a deceased passenger's family members benefit from
provisions of the Carriers' Liability Act providing that the amount of damages payable in
respect of the death of the passenger are not to be reduced due to an interest gained in a home,
or the contents of the home, by any family members of the passenger due to the passenger's
death. Currently only the spouse and child obtain this benefit.
The Bill will also allow regulations to be made to include other groups of people in the
proposed definition of family member. As any regulations will be a disallowable instrument,
Parliament will maintain oversight.
The Bill proposes to implement the Montreal Convention through the insertion of a new Part
into the Carriers' Liability Act modeled on the existing Part II of the Act. However, it has
been necessary to make departures from the precise working of Part II to reflect modern
drafting techniques, and departures described below to ensure the effective operation of the
provisions of the Montreal Convention within Australian law.
The Bill allows for regulations to increase insurance levels for air carriers conducting
international carriage to and from Australia and to increase the liability limits for Australian
international carriers. It also provides that any updates to the liability limits under the
Montreal Convention will automatically apply to the new Part. Article 24 of the Convention
provides for five-yearly reviews of liability limits to account for inflation. Further, the Bill
allows that any amendments to the Convention to which Australia has become a party can be
given the force of law by the insertion of the English language text of the amendment into the
regulations. As regulation changes can be disallowed, this will ensure that Parliament retains
oversight of such amendments. At the same time, having such a facility will allow the
Government to bring amendments into force more quickly than through primary legislation,
allowing continuing consumer protection in line with international practice.
The Bill will also enable the Minister to give notice in the Gazette of different matters
relevant to the new Part relating to the Montreal Convention. Firstly, it gives the Minister the
power to give notice that a State Party has, or has not, taken action referred to in Articles 53
to 57 of the Montreal Convention. In summary, these Articles relate to a country's accession
to, denunciation of and reservations made to, the Convention. This provides the Government
with flexibility to make any such notices if beneficial to Australia's interests. Secondly, the
Minister is given power to give notice in the Gazette of any revision of the limits of liability
made in accordance with Article 24 of the Montreal Convention. While not necessary to give
effect to those revisions within Australian law, such a notice would serve a purpose of
notifying Australian industry and the community that the revision has taken place. Further,
the Bill states that any such Gazette notice is evidence of the matters declared. However, the
text specifies that the notice forms evidence of the matters declared on a prima facie basis
only, as compared to a conclusive basis.
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Further, the Bill states that a State Party is to be deemed to have submitted to the jurisdiction
of Australian courts for the purposes of an action brought against it under the Montreal
Convention in relation to carriage undertaken by that State Party (such as a state or military
aircraft). However, this does not apply where a declaration (reservation) has been made under
Article 57 of the Convention. In the interests of legal clarity, the Bill provides that this
exception to the jurisdiction of Australian courts only applies while the relevant State Party's
declaration under Article 57 remains in effect.
Financial impact statement
There are minimal financial implications for the Australian Government from the Bill. There
are no ongoing administrative costs. Where the Commonwealth is the operator of an aircraft,
liability in the event of an accident for the death or injury of a passenger may be higher under
the Montreal Convention than it would under existing international obligations.
Regulation impact statement
1. Problem
1.1. The rules applying in relation to the liability of carriers for damage caused
during international air carriage to and from Australia, are complicated,
unwieldy and out-of-date. They can result in unacceptably low amounts of
damages being payable to victims of air accidents and their families, and in
relation to damage to cargo and baggage. They impose outdated and
inefficient requirements in relation to documentation for the movement of
passengers, baggage and cargo.
The Warsaw System
1.2. The Convention for the Unification of Certain Rules Relating to International
Carriage by Air, done at Warsaw on 12 October 1929 (the Warsaw
Convention) was negotiated during the early years of the aviation industry. It
provided a uniform international treaty framework for liability rules governing
commercial international aviation, and for documentation such as tickets and
air waybills. It capped air carriers' liability at limits that were appropriate for
that era and that would protect the fledgling industry from potentially ruinous
claims for compensation. In return, it provided passengers with reasonable
certainty that they would recover a basic level of compensation.
1.3. Under the Warsaw Convention an international carrier is liable for the death or
injury of a passenger, caused by an event that took place on board the aircraft
or in the course of embarking or disembarking. It is liable for damage to cargo
and registered baggage caused by an occurrence during international carriage.
It is not necessary for the plaintiff to prove fault, such as negligence. However,
the carrier is not liable if it can prove that it took all necessary measures to
avoid the damage or that it was impossible to take such measures.
1.4. The Convention limits the damages that a court can award against a carrier.
The limits are specified in Poincaré gold francs. Since the abandonment of the
gold standard, the courts in different countries have adopted different
approaches to determining the exchange rate for gold francs, the Australian
courts favouring the use of the daily market price of gold. The exchange rate
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will therefore vary according to the country in which the action for damages is
brought.
1.5. For the death of, or injury to, a passenger, under the Warsaw Convention the
maximum damages that a court can award against the carrier are 125,000 gold
francs (of the order of A$16,000 - $20,000). For cargo and registered baggage,
the Warsaw Convention fixes the maximum damages at 250 gold francs per
kilogram (approximately A$30 - $40).
1.6. However, the liability limits do not apply if the carrier is proved to have acted
with intent to cause damage, or recklessly knowing that the damage would
result.
1.7. The Warsaw Convention attracted wide adherence (151 Parties), but the
liability limits were soon considered by many countries to be unacceptably
low. Many amendments to the Warsaw Convention were negotiated over the
years in an attempt to update it and raise liability limits. These resulted in a
`Warsaw System' comprising the 1929 Warsaw Convention, and the following
amending instruments: The Hague Protocol (1955), the Guadalajara
Convention (1961), the Guatemala City Protocol (1971), the 1975 Additional
(Montreal) Protocols Nos 1, 2, and 3, and Montreal Protocol No. 4 (1975). The
most successful of them (135 Parties), was The Hague Protocol, which doubled
the liability limits for injury and death. Some later amendments provided for
further increases in the liability limits, but they failed to attract broad
adherence.
1.8. Different Warsaw Parties adopted different amending instruments, resulting in
a complex array of international arrangements. The Warsaw System rules that
apply in relation to any particular flight are those set by the instruments to
which both the country of departure and the country of destination are Parties.
For example, Australia is a Party to the Warsaw Convention as amended by
The Hague Protocol, the Guadalajara Convention and Montreal Protocol No. 4.
Indonesia is a Party to the Warsaw Convention as amended by the Guadalajara
Convention. If an accident occurs on a flight for which Australia is the country
of departure, and Indonesia is the country of destination, the applicable
international law is the Warsaw Convention as amended by the Guadalajara
Convention (the liability limits being those in the Warsaw Convention).
However, if Australia is the country of departure, and France is the country of
destination, the applicable international law is the Warsaw Convention as
amended by The Hague Protocol, and the Guadalajara Convention (the liability
limits being those in The Hague Protocol), since those are the instruments to
which both France and Australia are Parties.
1.9. Dissatisfaction with the low liability limits set by the Warsaw Convention and
The Hague Protocol, and the inability of the international community to agree
on higher ones, led to various measures to `get round' those limits.
1.10. Relying on a provision of the Warsaw Convention that permits a carrier and
passenger to agree `by special contract' to a higher limit of liability, many
carriers agreed among themselves to apply an increased liability limit, or to
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waive liability limits. To this end, private agreements and voluntary
arrangements among air carriers were developed, notably within the
International Air Transport Association (IATA). Japanese airlines also
abandoned liability limits.
1.11. Some countries took action in relation to their own airlines. For example,
Australia imposed higher liability limits on Australian carriers, although its
obligations under the Warsaw System prevented it from imposing the same
limits on foreign carriers. In 1997, the European Council issued a regulation
providing for that EC carriers would be subject to a presumptive liability for
death or injury up to 100,000 SDRs, and to unlimited liability above that unless
the carrier proved it had taken `all necessary measures' to prevent the damage.
1.12. In addition, there has been a tendency for some courts (especially in the USA)
to interpret the Warsaw Convention in such a way as to avoid the application of
its liability limits where possible, eg. by finding that the carrier was guilty of
`wilful misconduct'.
1.13. These responses increased the amount of compensation available to many
passengers. However, they further complicated the international system. Far
from providing the uniformity originally intended by the Warsaw Convention,
the rules became fragmented and unpredictable. Determining the amount of
damages payable for the death of a particular passenger is likely to depend on
which Warsaw instruments apply, national laws or voluntary agreements
applying to the particular carrier, and the approach of the courts in the country
where the action for damages is brought.
1.14. In addition, the obligations imposed by the Warsaw System in relation to
tickets and other documentation are now outdated. Although in practice,
electronic documentation is already being widely used by the aviation industry
for both passenger ticketing and cargo movement, it does not meet the
requirements of the Warsaw Convention.
1.15. In 1999, the Convention for the Unification of Certain Rules for International
Carriage by Air, done at Montreal on 28 May 1999 (the Montreal Convention)
was concluded. It updates, and is intended eventually to replace, the Warsaw
Convention and all of its previous amendments.
2. Objectives
Objective of government action
2.1. The objective is:
- to provide for equitable compensation for death or injury to passengers, and
damage to baggage and cargo, that occur in international air carriage;
- to facilitate the efficient operation of international carriage by air of
passengers, baggage and cargo.
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Existing regulation
2.2. The Civil Aviation (Carriers' Liability) Act 1959 (Carriers' Liability Act) gives
the force of law to the Warsaw System instruments to which Australia is a
Party: the Warsaw Convention, The Hague Protocol, the Guadalajara
Convention and Montreal Protocol No. 4.1
2.3. The Carriers' Liability Act also includes provisions that apply to inter-State
carriage within Australia, and to international carriage that is not covered by
the Warsaw System (Part IV), and provisions requiring carriers to have
insurance (Part IVA). Complementary State Acts apply Parts IV and IVA of
the Commonwealth Act to intra-State travel. However, the legislative
provisions relating to purely domestic carriage are independent of Australia's
obligations under international law.
2.4. While the Carriers' Liability Act is based on the Warsaw System, it also
introduces some significant improvements. Importantly the Act sets higher
liability limits for Australian international carriers than those provided for
under the Warsaw system, being:
- 260,000 SDRs (approximately A$550,000) for passenger death or personal
injury; and
- A$1600 for registered baggage, and A$160 for hand luggage.
2.5. These limits do not apply to foreign carriers, since it would be contrary to
Australia's treaty obligations to impose higher liability limits on foreign
carriers than are provided for in the applicable international instruments.
However, in practice, under the IATA agreements, many foreign carriers
entering Australia have already voluntarily waived liability limits or accepted
limits that are higher than those applying under the Warsaw System.
2.6. Part IVA of the Carriers' Liability Act stipulates mandatory non-voidable
insurance for all air operators carrying fare-paying passengers, including
foreign carriers providing services to and from Australia, with the minimum
insurance level being 260,000 SDRs per passenger.
Existing voluntary code
2.7. In addition to the Carriers' Liability Act, a voluntary industry code (the Code
for the Preparation of Airline Family Assistance Plans) sets out minimum
standards for airlines operating to and from Australia, in giving assistance to
victims, and the families of victims, in the event of a major civil aircraft
accident involving loss of life or serious injury. Among other things, the Code
provides that in the event of the death of a passenger, airlines should offer an
advance payment to the family as soon as practicable after the event. It does
not stipulate a particular limit, but mentions the example of the European
1
It also includes provisions that would give effect to other Warsaw System instruments, if Australia were to
become a Party to them and if they were to enter into force, eg. Montreal Protocol No.3, the Guatemala
Convention.
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Community minimum advance payment, in the event of death, of
approximately A$30,000.
Existing policy
2.8. In June 1999, the Minister for Transport approved the commencement of a
consultation process with a view to ratification of the Montreal Convention.
3. Options
Option 1
3.1. Option (1) involves Australia acceding to, and implementing, the Montreal
Convention.
The Montreal Convention
3.2. The Montreal Convention was concluded in 1999. It modernises the
international air carriers' liability framework and provides measures such as
electronic documentation to assist the smooth movement of air passengers,
baggage and cargo.
3.3. The Montreal Convention incorporates most of the provisions of the earlier
Warsaw System instruments, but combines them as a single package that States
must either accept or reject. States will no longer be able to ratify some
Protocols and not others. For the Montreal Convention to be effective, it is
essential that a large number of States adhere to it, particularly the major
aviation nations. As more and more States become Parties to the Montreal
Convention, the older Warsaw System instruments will become increasingly
redundant and there will be increasing pressure on non-Parties to join the new
Convention. In time, it is intended that the Montreal Convention will
completely replace the Warsaw System.
3.4. The Montreal Convention entered into force on 4 November 2003. As at 22
June 2004, 53 States and one Regional Organisation (the European
Community) had adhered to it. The Parties include the European Community
and its member countries, which ratified on 29 April 2004, the United States,
New Zealand, Canada, and Japan.
3.5. The Montreal Convention goes further than consolidating existing Warsaw
System instruments. There are a number of refinements and reforms in the
Convention. It substantially improves consumer protection in international
carriage by air and modernises the smooth flow of passengers, baggage and
cargo. Most importantly it improves the international regime for air carriers'
liability, particularly in relation to injury or death.
Main features of the Montreal Convention
Two tier liability for death or injury
3.6. Article 21 provides for two tiers of liability for the death of, or bodily injury to,
an aircraft passenger:
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- The first tier - up to 100,000 SDRs (approx. A$212,000) - is on the basis of
strict (no-fault) liability, and can be reduced or excluded only in the case of
contributory negligence of the passenger or person claiming compensation;
- The second tier (i.e., for claims in excess of 100,000 SDRs) is unlimited in
amount, but this liability is fault-based. However, the plaintiff is not required
to prove fault. The carrier is liable unless it proves either that the damage was
not due to negligence or any other wrongful act or omission, or that the damage
was solely due to the negligence or the wrongful act or omission of a third
party.
Proven damages rather than punitive damages compensation
3.7. Article 29 expressly provides that punitive, exemplary or other non-
compensatory damages may not be recovered in any claim arising from
international carriage by air.
Updated liability limits for baggage, cargo and delay
3.8. Article 22 of the Montreal Convention provides for liability of the air carrier
for baggage (either accompanied or unaccompanied) up to a limit of 1,000
SDRs ($A2,120) for each passenger, unless a special declaration is made to the
carrier by the passenger. If the carrier admits loss of checked baggage or
checked baggage has not arrived after 21 days, a passenger may make a claim.
The liability limit for cargo is 17 SDRs ($A36) per kilogram. Where damage is
caused by delay, the carrier is liable up to a limit for each person of 4,150
SDRs ($A8810), unless it proves it took all reasonable measures to avoid the
damage. Court costs may also be awarded to the claimant. These provisions
represent substantial improvements on the current Warsaw System
arrangements.
Regular revision of liability limits
3.9. Article 24 provides for a regular review of carriers' liability limits every five
years to take account of inflation. The International Civil Aviation
Organization (ICAO) must measure the accumulated inflation over the review
period, and if it exceeds 10% must notify the Parties of a revision of the limits
of liability. The revision takes effect 6 months later, unless a majority of
Parties register their disapproval, in which case the matter is referred to a
meeting of Parties.
SDRs
3.10. The Montreal Convention uses the International Monetary Fund's Special
Drawing Right (SDR) as the monetary unit rather than the obsolete Poincaré
gold francs of the Warsaw Convention. On 21 June 2004 the SDR rate, as
published by the Reserve Bank of Australia, was A$ 0.4707.
Advance payments
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3.11. Article 28 allows States to require their carriers to make advance payments
without delay following aircraft accidents, to assist victims or their relatives to
meet their immediate economic needs. These payments are not to constitute
recognition of liability, and may be offset against any amounts subsequently
paid as damages by the carrier. The Convention does not permit Australia to
subject foreign carriers to this requirement.
Insurance
3.12. Article 50 the Convention obliges States to ensure their air carriers maintain
adequate insurance to cover their liability under the Convention. A carrier may
be required by the State into which it operates to furnish evidence that it
maintains adequate coverage for its liability.
Fifth jurisdiction
3.13. Under the (pre-Montreal Convention) Warsaw System, claims for damages can
be heard in one of four jurisdictions:
- a court in the State where the carrier is ordinarily resident;
- a court in the State where the carrier has its principal place of business;
- a court in the State where the carrier has an establishment by which the ticket
was purchased or contract was made; and
- a court in the State of the passenger's destination.
3.14. Article 33 of the Montreal Convention provides for a `fifth jurisdiction'. It
allows an action for damages for the death or injury of a passenger to be
brought in the country where the passenger had his or her principal and
permanent residence at the time of the accident, if it is a country to or from
which the carrier operates and where it has premises.
Simplified documentation/electronic ticketing
3.15. The Montreal Convention provides for simplified documentation. It eliminates
the need for cargo consignors to complete detailed paper-based air waybills,
and so allows simplified electronic records to be used. As long as the passenger
or consignee has adequate evidence of the contract and provided it is in a form
that meets the requirements of border control agencies, there is no reason why
documentation should not be electronic.
Implementation of the Montreal Convention
3.16. Amendment of the Carriers' Liability Act will be required to provide for
compliance with the Montreal Convention, if Australia accedes to it. The Act
would be amended to give the force of law to the Montreal Convention in
Australia, in relation to air carriage to which the Convention applies as
international law. This will require Australian courts to apply the terms of the
Convention in actions for damages arising out of flights to which the Montreal
Convention applies.
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3.17. Consequential amendment of the Air Accidents (Commonwealth Government
Liability) Act 1963 will be required. The Air Accidents Act applies to persons
travelling on Commonwealth-operated aircraft, or travelling on
Commonwealth business on commercial airlines. It provides for the
Commonwealth to `top-up' damages to the level that applies to domestic travel,
in cases where lower Warsaw limits apply. Minor amendment is necessary to
prevent Commonwealth liability under the Air Accidents Act from being
substituted for its liability under the Montreal Convention.
3.18. The provisions of the Carriers' Liability Act applying to non-Montreal
Convention international flights (i.e. between Australia and a country that is
not a Party to the Montreal Convention) would remain unchanged. The
provisions of the Act applying to domestic flights would also remain
unchanged.
3.19. As already mentioned, the Carriers' Liability Act currently imposes on
Australian international carriers a higher liability limit (260,000 SDRs or
around A$552,000), for death or injury, than applies under the Warsaw
System. If Australia accedes to the Montreal Convention and amends the
Carriers' Liability Act to give effect to it, the 260,000 SDR limit will continue
to apply to Australian carriers in relation to non-Montreal Convention carriage.
However, for carriage to which the Montreal Convention applies, both
Australian and foreign carriers will be subject to a first tier strict liability limit
of 100,000 SDRs, and a second tier of unlimited fault-based liability (with the
airline bearing the burden of proving absence of fault), for death or injury. It is
not proposed, under Option 1, to impose on Australian carriers first tier liability
of 260,000 SDRs. The application of the levels as set out in the Montreal
Convention is preferred, in order to maintain the integrity of the international
system established by that Convention. Further, the limit of 260,000 SDRs in
the current Act is an overall liability limit. Under the Montreal Convention, on
the other hand, 100 000 SDR is not a cap on liability, but the level at which a
change in the basis of liability occurs (from strict liability, to liability that can
be excluded by proving absence of fault). The Montreal Convention limits in
relation to delay, baggage and cargo will also apply.
3.20. Any inflation-linked updating of the Montreal Convention limits, under Article
24, will apply automatically under Australian law.
3.21. Under Option 1, it is proposed that, for Montreal Convention carriage, the
amount of compulsory insurance against event of death or injury remain
unchanged at 260,000 SDRs per passenger. This is considered to be `adequate
insurance' as required by Article 50.
3.22. It is proposed that advances of damages would remain subject to the voluntary
industry code mentioned above, rather than being required by law.
Option 2
3.23. Option 2 is not to become a Party to the Montreal Convention but to attempt to
improve the situation, so far as concerns Australia, by unilateral action.
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3.24. The Warsaw Convention, The Hague Protocol, the Guadalajara Convention
and Montreal Protocol No. 4 would continue to apply to carriage between
Australia and Parties to any of those instruments (including Montreal
Convention Parties). Those agreements severely limit the Australian
Government's ability to legislate, or take administrative action, in relation to
the matters dealt with in them, without contravening Australia's international
obligations. For example, Australia has already imposed a higher liability limit
on Australian international carriers than on foreign carriers. To impose a
higher limit on foreign carriers than is provided for under the relevant Warsaw
System instruments, without acceding to the Montreal Convention, would
contravene Australia's international obligations.
3.25. The applicable international provisions in relation to documentation would
remain unchanged.
Option 3
3.26. Option 3 is to delay acceding to and implementing the Montreal Convention
until it has a very large number of Parties, so that when Australia accedes it
will be joining a uniform world-wide system.
4. Impact Analysis
Those affected
4.1. The problem affects international carriers, their passengers and those sending
cargo overseas by air. It particularly affects passengers who suffer injury, the
families of passengers who are killed, and the owners of baggage and cargo
that is delayed or damaged, in the course of international carriage.
Option 1
Effect on existing regulation
4.2. Amendment of the Carriers' Liability Act to give effect to the Montreal
Convention, and consequential amendment of the Air Accidents Act, would be
needed. No other legislation, or regulations would be affected. The provisions
of the Carriers' Liability Act and of State and Territory legislation relating to
domestic air carriage would not be affected.
4.3. Neither would option 1 affect the rules applying to international carriage
between Australia and a country that is not a Party to the Montreal Convention.
4.4. However, accession to the Montreal Convention would change the rules
applying to carriage between Australia and another Montreal Convention Party.
For example, currently carriage between Australia and the United Kingdom is
subject to the rules in the Warsaw Convention as amended by The Hague
Convention, Guadalajara Convention and Protocol No 4. Upon Australia
becoming a Party to the Montreal Convention carriage between Australia and
the UK would be covered by the Montreal Convention.
4.5. Most of Australia's major aviation partners are now Parties to the Montreal
Convention, and others such as Singapore and Hong Kong are working towards
becoming Parties. If Australia becomes a Party to the Montreal Convention,
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that Convention will apply to carriage between Australia and those partners.
This means that entry into force of the Montreal Convention for Australia will
have the effect of immediately applying its provisions to a large number of
passengers and a large volume of cargo.
Liability limits
4.6. In relation to carriage covered by the Montreal Convention, consumers -
passengers and those sending cargo - who suffer damage would potentially
benefit from changes in the law relating to liability limits. In particular,
passengers who are injured, and the families of passengers who are killed, are
likely to benefit from removal of any overall limit on the liability of the carrier.
Further, the provision for strict liability up to 100,000 SDRs means that
compensation up to that level is payable, even if the carrier can prove that it
took all necessary measures to prevent the damage.
4.7. In many cases, already, the liability limits provided for under the Warsaw
System do not affect the award of damages in practice. Most international
carriers operating into Australia are parties to inter-carrier agreements under
which they do not rely on the Warsaw Convention limits or defences. It
therefore cannot be claimed that all consumers suffering damage resulting from
carriage between Australia and another Montreal Convention Party will receive
greater compensation as a result of Australian accession to, and
implementation of, the Montreal Convention. However, at the least, option 1
will provide considerably more certainty as to the availability of compensation.
4.8. In addition, consumers in the future will benefit from regular updating of
liability limits in line with inflation.
4.9. Australian and foreign international carriers are already subject to the Montreal
Convention in relation to carriage between two Parties to that Convention.
Further, Qantas and most foreign carriers operating into Australia, are parties
to inter-carrier agreements under which they already agree to waive liability
limits and defences available under the Warsaw System. The increased
liability limits under the Montreal Convention would not result in any further
burden on those carriers.
4.10. Adoption of the Montreal Convention provisions is not expected to increase
insurance premiums for Australian international carriers or foreign
international carriers. Apart from the effect of the inter-carrier agreements,
insurers, in setting premiums for carriers that operate into the USA, already
factor in the possibility of US courts deciding that the carrier or its agents have
engaged in wilful misconduct and that liability limits therefore do not apply.
4.11. Carriers and consumers will also benefit from the fact that the Montreal
Convention expresses liability limits in SDRs. This removes existing
uncertainty about the values to be applied, resulting from disagreement on the
way in which the obsolete gold franc amounts in the Warsaw System
instruments are to be converted.
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Fifth jurisdiction
4.12. Consumers who seek damages from carriers will also benefit from the
provision in the Montreal Convention for a `fifth jurisdiction'. This would
give most Australian citizens access to Australian courts to pursue claims in
relation to flights to which the Montreal Convention applies.
4.13. The `fifth jurisdiction' provision also means that Australian carriers may
potentially be exposed more often to litigation in courts such as those of the
United States. However, Australian airlines that fly to the US are required by
US law to have appropriate liability insurance to cover awards by US courts.
Carriers sued in US courts and other foreign courts will also potentially benefit
from the Montreal Convention's prohibition of punitive or exemplary damages.
Documentation
4.14. Australian carriers and consumers would benefit from the provision in the
Montreal Convention for simplified documentation, which allows the use of
electronic ticketing. This is in keeping with practices being adopted in relation
to other modes of transport, and in commerce generally. Australia has been at
the forefront of international initiatives to simplify and speed up the process of
movement across borders by using electronic methods. While electronic
documentation is already being used in practice by international air carriers
under ad hoc arrangements, the Montreal Convention provides the added
benefits of a standardised international system.
International uniformity
4.15. Australian accession to the Montreal Convention would be a step towards the
uniformity of international rules relating to carriage by air. Uniformity will
remove uncertainty as to the rules that apply in any particular case. It will also
remove inconsistency between rules applying at different stages of
international carriage, or to different passengers or cargo on the same flight
(eg. where the original departure and/or ultimate destination are different).
This is expected to provide the benefit to both consumers and carriers of
improving efficiency and reducing litigation.
Small Business
4.16. Option 1 would create no significant burdens on small business. It would
create benefits for freight forwarders through increased efficiency and certainty
about liability limits. It would potentially create benefits to small businesses
sending cargo internationally by more efficient documentation, a more certain
legal regime and increased liability limits. Small travel agents may benefit
from the increased efficiency of a standardised electronic ticketing system.
Domestic carriers
4.17. There would be no effect on purely domestic carriers, including rural and
regional carriers. The Montreal Convention applies only to international
carriage.
13
Option 2
4.18. Option 2 would have no benefits or costs to consumers or carriers, as compared
to the existing situation, so far as concerns the recovery of damages.
4.19. Under option 2, difficulties in the use of electronic ticketing would persist and
perhaps increase as technology develops, and as the standardised system
between the Montreal Convention Parties becomes more widely used.
4.20. Option (2) would not contribute to the development of a uniform international
framework for liability and documentation for international civil aviation.
Australia would be out of step with other developed countries, such as the US,
the countries of the European Community, Canada, New Zealand and Japan.
By remaining part of the outdated Warsaw System, rather than assisting with
the establishment of a modern, uniform system by becoming a Party to the
Montreal Convention, Australia would be seen as part of the problem, rather
than part of the solution, from an international perspective.
Option 3
4.21. Option 3 would have the same consequences as Option 2, until Australian
accession to, and implementation of, the Montreal Convention. Thereafter it
would have the same consequences as Option 1, subject to the following.
4.22. Carriers and consumers would have the benefit that, upon Australian accession,
there would be greater certainty about the applicable rules and liability limits.
All (or nearly all) international carriage by air would be subject to the Montreal
Convention, and Australia would be joining a uniform international system.
4.23. However, in the meantime, consumers and carriers would be subject both to the
existing inconsistencies and uncertainties of the Warsaw System, and to
uncertainty as to when Australia will accede to the Montreal Convention. It is
not possible to predict when the Montreal Convention will have so many
Parties as to constitute a world-wide uniform system, replacing the Warsaw
System instruments. It may well take some years.
4.24. At the stage when the Montreal Convention had only a few Parties, and
especially before it entered into force, the benefits of waiting to see whether it
would attract a sufficient number of Parties to create a viable international
system outweighed the disadvantages of not being a Party. A number of earlier
instruments in the Warsaw System had failed to attract sufficiently broad
adherence, resulting in the excessive complication of that System.
4.25. However, the Montreal Convention is now in force. Further, most of
Australia's major aviation partners are already Parties to the Montreal
Convention, and the others are expected to become Parties soon. Waiting for a
greater number of Parties, therefore, may make little difference to the ultimate
benefits to consumers and carriers in relation to carriage to and from Australia.
4.26. A disadvantage of Option 2 is that delaying accession may harm Australia's
standing as a lead nation in international aviation reform. Traditionally,
14
Australia has promoted reform in the aviation industry, and has one of the most
liberal regulatory regimes in the world. Following the adherence of the
European Community and its Member States in April 2004, the Montreal
Convention has now gained such international `weight' that it is inappropriate
for Australia not to accede.
Consultation
4.27. A Discussion Paper was issued in January 2001, which invited comment on the
questions whether Australia should become a Party to the Montreal
Convention, and whether features of the Montreal Convention should be
applied to Australia's domestic carriers. As well as publishing the Discussion
Paper on its website, the Department wrote to the States and Territories and
industry stakeholders with a copy of the Discussion Paper, and faxed a media
release to other relevant organisations, in February 2001. Submissions were
requested by 20 April 2001 but the deadline was extended to allow for
additional comment. The Discussion Paper is still accessible on the
Department's website.
4.28. Thirty-one submissions were received in response to the discussion paper.
Eighteen of those responses directly addressed Australia's ratification of the
Montreal Convention and seventeen of those were in favour of ratification2 and
implementation of the Montreal Convention for international air travel. These
included Australian and overseas international airlines, aviation associations,
representatives of the aviation insurance industry, members of the airfreight
industry, IATA, a pilots' association, an airline passenger safety organisation,
relatives of individuals killed or injured in an airline accident, State and
Territory governments, a Commonwealth Department (Defence) and the
Government of Papua New Guinea.
4.29. A major air transport association summed up the general attitude to the
Montreal Convention as follows:
Early ratification by States and coming into force of the Montreal Convention
would result in the accrual of significant benefit to consumers and to the air
transport industry generally, through the advancement of increased efficiencies
and uniformity of law.
4.30. Both Australian and overseas international airlines responded positively to the
Discussion Paper. The Virgin Blue group, which has a New Zealand
subsidiary engaged in Trans-Tasman carriage, was not in existence when the
Discussion Paper was issued. The Department contacted that group in June
2004 for comment on proposed accession to the Montreal Convention, and
Virgin Blue did not object to the Department's proposal to accede to the
Montreal Convention. Qantas was contacted again in June 2004 and it
reaffirmed its support for the accession to the Montreal Convention. Qantas did
2
At the time the Discussion Paper was issued, the Montreal Convention was open for signature, which would be
followed by ratification, as the means of becoming a Party. Since its entry into force, the Convention is no
longer open for signature. Now, the appropriate means for Australia, which did not sign the Convention, to
become a Party, is by accession.
15
not see the accession to the Montreal Convention as imposing any additional
burdens on it, given its voluntary assumption of standards higher than those in
the current Warsaw system.
4.31. The aviation insurance industry responded positively to the proposal to ratify
the Montreal Convention and did not see any increase in insurance premiums
resulting from the implementation of the Montreal Convention on an
international level.
4.32. The international airfreight industry were particularly in favour of early
accession to the Montreal Convention as they argued that the Montreal
Convention would eliminate the existing conflict of liability provisions when
cargo is carried between States which have ratified none, one or more of the
Warsaw Protocols. They expressed concern that the existing conflict has
caused much unnecessary litigation.
4.33. Consultation with the States and Territories has been undertaken through the
Treaties Schedule, as well as through the Discussion Paper. The Queensland
and Norfolk Island Governments commented on the Discussion Paper and were
supportive of the approach taken.
4.34. Relevant Commonwealth agencies were also sent the Discussion Paper, and the
Department of Defence provided positive comments.
4.35. The only negative response in relation to the Montreal Convention, from two
members of the public, was that Australia should push for an even better
Convention even though they thought the Montreal Convention was a major
step forward. This view was taken at a time when few States were a Party to
the Montreal Convention. Attempting to start negotiations for another
international convention does not appear to be a real possibility now that most
key international aviation States have signed up to the Montreal Convention.
4.36. The Department also gave a presentation - `Reforming Aviation Insurance and
Carriers' Liability' - to the Aviation Law Association of Australia and New
Zealand in Sydney on 19 June 2001, outlining the proposed changes to be
brought about by the Montreal Convention.
5. Conclusion and recommended option
5.1. Option 2 would leave the existing problem essentially unchanged. Option 3
would leave the existing problem unchanged for an unpredictable length of
time, while Australia waited for other countries to become parties to the
Montreal Convention. Upon Australian accession to the Montreal Convention,
Option 3 would bring essentially the same benefits and costs as Option 1, but
with the additional benefit that Australia would be joining an international
system that was already uniform. This benefit would not compensate for the
disadvantages of persisting in the present situation for a number of years,
particularly from the point of view of Australia's international standing as a
modern aviation nation.
16
5.2. The preferred option is Option 1, namely for Australia to accede to the
Montreal Convention, and for the Carriers' Liability Act to be amended to give
effect to it. The problem of inconsistent and unsatisfactory rules on
international air carriers' liability was created at the international level, and can
only be effectively solved at that level. The Montreal Convention is the
solution negotiated by the international community. For carriage to and from
Australia to benefit from the solution, Australia must accede to, and
implement, the Montreal Convention.
6. Implementation and review
6.1. The Department of Transport and Regional Services will have responsibility
for the steps leading to accession to the Convention and administration of the
amended legislation.
CIVIL AVIATION LEGISLATION AMENDMENT (1999 MONTREAL CONVENTION
AND OTHER MEASURES) BILL 2008
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. Clause 2 sets out the commencement dates of the Bill:
2.1 Sections 1 to 3 of the Bill will commence on the day on which the Bill receives the Royal
Assent.
2.2 Schedule 1 and Schedule 2 to the Bill will commence on a day to be fixed by
proclamation, provided that that day is not before the 1999 Montreal Convention enters
into force for Australia. If Schedule 1 has not commenced by Proclamation within the 6
month period beginning on the day on which the 1999 Montreal Convention enters into
force for Australia, it will commence automatically on the first day after the end of that 6
month period. In this case, the Minister will be required to announce the commencement
by notice in the Gazette.
2.3 The Minister's notice of commencement is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003, and the inclusion of a
statement to this effect in Column 2 of this Clause is a declaratory statement to assist
readers and is not an exemption from the Legislative Instruments Act 2003.
Clause 3: Schedule(s)
3. This clause provides that the Civil Aviation (Carriers' Liability) Act 1959 (the Carriers'
Liability Act), the Air Accidents (Commonwealth Government Liability) Act 1963 and the
Civil Aviation Act 1988 are amended as set out in the applicable items in the Schedules to
the Bill.
17
· Schedule 1 implements the 1999 Montreal Convention. Within Schedule 1, Part 1
amends the Carriers' Liability Act, while Parts 2 and 3 contain consequential
amendments to the Air Accidents (Commonwealth Government Liability) Act 1963 and
the Civil Aviation Act 1988 respectively.
· Schedule 2 contains other amendments to the Carriers' Liability Act. Within Schedule
2, Part 1 makes changes relating to the definition of `family member', while Part 2
contains five technical amendments to the Carriers' Liability Act.
18
Schedule 1 - The 1999 Montreal Convention
Part 1 - Civil Aviation (Carriers' Liability) Act 1959
Item 1 - Subsection 5
Item 1 inserts a new definition to define the term `1999 Montreal Convention'. This
definition has been drafted to give the force of law in Australia to:
· any adjustments for inflation made to the liability limits under Article 24 (effective
immediately upon those adjustments coming into force), and
· any amendments of the Convention (effective once the amendment has come into force
for Australia and a copy of the English text of the amendment is included in the
regulations).
Item 2 - Subsection 8(2)
Item 2 makes an exception to section 8(2) of the Carriers' Liability Act for the 1999 Montreal
Convention. Subsection 8(2) provides that the French text of an amended version of the
Warsaw Convention is to prevail over the English text in the case of inconsistency. This
subsection is not applicable to the 1999 Montreal Convention, as the English language text of
that Convention is equally as authentic as the text in the other five official languages of the
United Nations.
Item 3 - New Part IA - Carriage to which the 1999 Montreal Convention applies
Item 3 inserts a new Part IA into the Carriers' Liability Act (sections 9A through to 9L). This
new Part will give effect to the 1999 Montreal Convention and includes provisions to give
select articles of the Convention a particular application to suit Australia's judicial system and
legal policy. New Part IA is modelled on existing Part II of the Carriers' Liability Act, but
amended to give effect to the Montreal Convention. The wording used in many of the
provisions has also been updated from that in the equivalent provisions in Part II of the
Carriers' Liability Act, in order to reflect modern drafting practices and to improve clarity,
without any intention of changing the meaning.
Section 9A inserts a definition of `the Convention' which will apply only for the purposes of
the new Part IA. This definition of `the Convention' refers to the 1999 Montreal Convention,
as that Convention is given the force of law and applied by new Part IA. This definition is
distinct from that of the `1999 Montreal Convention' in Item 1.
Section 9B provides that the 1999 Montreal Convention has the force of law in Australia,
regardless of the nationality of the airline that may be performing carriage to which the 1999
Montreal Convention applies.
Section 9C provides that an increase in the liability limit for Australian international airlines
may be prescribed by regulation, and confirms that such prescribed limits have the force of
law in Australia. This flexibility will enable the Government to ensure that consumers are
suitably protected. The section also includes three definitions to clarify the application of this
section.
Section 9D provides that a carrier's liability under the 1999 Montreal Convention for the
death of a passenger is in place of any civil liability that may arise by virtue of the death, or
an injury which caused the death, subject to the exclusions of section 9F.
The section further provides that:
19
· only one action may be brought in respect of the death of any one passenger,
· liability may be enforced for the benefit of any family member(s) (as defined in the new
ss5(2)) who suffered damage because of the passenger's death,
· an action to enforce the liability may be brought by either a personal representative or a
person for whose benefit the liability is enforceable, and
· damages payable are to be divided amongst people entitled to compensation as the court
(or jury, as applicable) directs.
Damages recoverable under section 9D include:
· lost earnings and profit up to the date of death of the passenger,
· funeral expenses, and
· if the passenger's death is the result of an injury, medical expenses reasonably incurred in
treating that injury.
While damages that may be awarded are not limited to financial loss caused by the death of
the passenger, Article 29 of the Convention provides that punitive, exemplary or any other
non-compensatory damages are not to be awarded.
Subsection 9D(10) provides that a court may make any orders that are just and equitable
having regard to the provisions of the Convention and any proceedings which may be brought
against the carrier, whether those proceedings are brought in Australia or overseas.
With regards to costs, subsection 9D(11) provides some protection to those family members
for whose benefit an action is brought (eg. by a personal representative).
Section 9E provides that a carrier's liability under the 1999 Montreal Convention for injury to
a passenger is in place of any civil liability under any other law in respect of the injury,
subject to the exclusions of section 9F.
Section 9F confirms that the Convention and the Bill do not exclude a carrier's liability to
indemnify the employer of a passenger in respect of workers' compensation payments, or to
make contributions to a tort-feasor who is also liable in respect of a passenger's injury or
death. However, this does not increase any overall limit on the carriers' liability.
Section 9G provides that damages payable because of a carrier's liability under the
1999 Montreal Convention are not to be reduced because a claimant has received, or may
receive, an amount of money from other sources including life insurance, superannuation,
social service benefits or inheritance.
Section 9H provides, in accordance with Article 20, for the damages payable by the carrier to
be reduced by a court in cases of contributory negligence (i.e. the negligence of the passenger
or cargo consignor caused or contributed to the death, injury, loss or damage), in line with the
degree of responsibility of the passenger or cargo consignor. Section 9H sets out a process
through which a court is to apply Article 20. Subsection (4) allows for the possibility that
there may not be a maximum liability of the carrier applying to the relevant contract of
carriage, because Article 25 provides that carriers may voluntarily stipulate that a higher or no
liability limit applies in relation to carriage.
Section 9J provides that if carriage has been directly provided by a State Party to the
1999 Montreal Convention, that State Party is taken to have submitted to the jurisdiction of an
Australian court except in relation to carriage which is covered by a declaration under Article
57 of the 1999 Montreal Convention. Article 57 allows a State Party to exclude from the
application of the 1999 Montreal Convention non-commercial carriage that it performs itself
for purposes of State, and military carriage.
20
Section 9K provides that the Minister may publish a notice in the Gazette declaring that:
· other States have or have not taken certain actions in relation to their status as a State
Party to the Convention, or
· an adjustment made to liability limits to reflect inflation (in accordance with Article 24 of
the Convention) has become effective.
It is not intended that a notice in the Gazette will be required for the adjustment to liability
limits to have effect in Australian law.
The section also specifies that a notice made under the section is prima facie evidence of the
matters declared.
Section 9L provides that a matter arising under the Convention is not a matter arising directly
under a treaty for the purposes of the Judiciary Act 1903. A matter arising under the 1999
Montreal Convention as given the force of law by the Bill is therefore not within the exclusive
jurisdiction of the High Court of Australia.
Item 4 - Subsection 26(1) (definition of domestic carrier)
Item 4 makes a consequential amendment to the definition of domestic carrier, by inserting a
reference to the new Part IA. This Item also makes a technical correction, amending `2 or 3'
to `II or III' to reflect the correct numbering style for Parts of the Carriers' Liability Act.
Item 5 - Subsection 27(1)
Item 5 is a consequential amendment which inserts a reference to the 1999 Montreal
Convention.
Item 6 - Section 41A
Item 6 is a consequential amendment which inserts a reference to the new Part IA.
Item 7 - Section 41B (definition of carrier)
Item 7 is a consequential amendment to include a reference to the new Part IA.
Item 8 - Paragraph 41C(3)(aa)
Item 8 inserts a new paragraph 41C(3)(aa) which sets the amount of compulsory insurance to
be held by carriers undertaking carriage to which the 1999 Montreal Convention applies. It
will also give the Government the flexibility to increase that amount by regulation. This will
enable compulsory insurance levels to be adjusted in the future to ensure that consumers are
adequately protected, including in the case of adjustment of liability limits for inflation under
Article 24 of the Convention.
Item 9 - Subsection 42(1)
Item 9 is a consequential amendment which inserts a reference to the new Part IA.
Item 10 - Schedule 1A
Item 10 inserts a new Schedule 1A containing the text of the 1999 Montreal Convention.
Part 2 - Air Accidents (Commonwealth Government Liability) Act 1963
Item 11 - Paragraph 9(1)(a)
Item 11 is a consequential amendment which inserts a reference to the new Part IA of the
Carriers' Liability Act.
21
Item 12 - Subsection 9(2)
Item 12 is a consequential amendment which inserts a reference to the new Part IA of the
Carriers' Liability Act.
Item 13 - Subsection 9(2)
Item 13 is a consequential amendment which replaces the word `either' with the word `any' to
accommodate the increased number of Parts under which liability may apply.
Part 3 - Civil Aviation Act 1988
Item 14 - Subsection 28BC(1C)
Item 14 is a consequential amendment which inserts a reference to the new Part IA of the
Carriers' Liability Act.
Item 15 - Subsection 28BC(2C)
Item 15 is a consequential amendment which inserts a reference to the new Part IA of the
Carriers' Liability Act.
Schedule 2 - Other Amendments
Part 1 - Amendments relating to family members
Schedule 2 Part 1 introduces a definition of `family member'. The definition will apply in the
context of claims arising under the Montreal Convention, as well as the Warsaw system of
liability (established under Part II and Part III of the Carriers' Liability Act) and the liability
system for domestic carriage (established under Part IV of the Carriers' Liability Act).
Item 1 - Section 5
Item 1 is a technical amendment to break the section up into numbered subsections.
Item 2 - Section 5
Item 2 defines "family member" as having the meaning ascribed in subsections (2) and (3) of
the section.
Item 3 - Section 5 Meaning of `family member'
Item 3 provides the meaning of `family member'. It includes passenger's spouse, de facto
spouse; parent, step-parent, grandparent; child, step-child, ward, grandchild; sibling, step-
brother or step-sister, half brother or half-sister; or a person who is wholly or partly dependent
on the passenger for financial support and is a foster-sibling, foster-child or guardian. The
Item also provides for further classes of people to be prescribed by regulation.
Item 4 - Subsection 12(3)
Item 4 provides for the new definition of family member to apply in the context of claims
arising under the Warsaw system of liability.
Item 5 - Subsection 12(5)
Item 5 repeals the list of family members who, in the context of claims arising under the
Warsaw system of liability, are currently entitled to enforce liability in the event of a
passenger death.
Item 6 - Paragraphs 12(a) to (c)
22
Item 6 is a technical amendment which clarifies the issues which are not to be taken into
account when damages are assessed under the Warsaw system of liability, ensuring
consistency with clause 3 Part 1A section 9G; and schedule 2 Part 1 Item 10 of the Bill.
Item 7 - Paragraphs 15(d)
Item 7 ensures that, in the context of context of claims arising under the Warsaw system of
liability, all of a deceased passenger's family members benefit from provisions of the
Carriers' Liability Act providing that the amount of damages payable in respect of the death
of the passenger are not to be reduced due to an interest gained in a home, or the contents of
the home, by any family members of the passenger due to the passenger's death. Currently
only the spouse and child obtain this benefit.
Item 8 - Subsection 35(3)
Item 8 provides for the new definition of family member to apply in the context of claims
arising under the liability system for domestic carriage.
Item 9 - Subsection 35(5)
Item 9 repeals the list of family members who, in the context of claims arising under the
liability system for domestic carriage, are currently entitled to enforce liability in the event of
a passenger death
Item 10 - Paragraphs 38(a) to (c)
Item 10 is a technical amendment which clarifies the issues which are not to be taken into
account when damages are assessed in the context of claims arising under the liability system
for domestic carriage, ensuring consistency with clause 3 Part 1A section 9G; and schedule 2
Part 1 Item 6 of the Bill.
Item 11 - Paragraphs 38(d)
Item 11 ensures that, in the context of context of claims arising under the liability system for
domestic carriage, all of a deceased passenger's family members benefit from provisions of
the Carriers' Liability Act providing that the amount of damages payable in respect of the
death of the passenger are not to be reduced due to an interest gained in a home, or the
contents of the home, by any family members of the passenger due to the passenger's death.
Currently only the spouse and child obtain this benefit.
Part 2 - Technical Amendments
Schedule 2 Part 2 makes a number of technical amendments to the notes to the Schedule
headings in the Civil Aviation (Carriers' Liability) Act 1959. These amendments replace
incorrect cross-references in the current notes.
Item 12 - Schedule 1 (note to Schedule heading)
Item 12 replaces the existing note with a new note referring to section 8.
Item 13 - Schedule 2 (note to Schedule heading)
Item 13 replaces the existing note with a new note referring to section 8.
Item 14 - Schedule 3 (note to Schedule heading)
Item 14 replaces the existing note with a new note referring to section 8.
Item 15 - Schedule 4 (note to Schedule heading)
Item 15 replaces the existing note with a new note referring to section 8.
23
Item 16 - Schedule 5 (note to Schedule heading)
Item 16 replaces the existing note with a new note referring to section 8.
24
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