(c) the Guadalajara Convention, Supplementary to the Warsaw Convention, for Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier; and

(d) the Rome Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface,

and to extend the effect of those provisions in certain circumstances.

PART I. – PRELIMINARY.

INTERPRETATION.

In this Act, unless the contrary intention appears–

“the Guadalajara Convention” means the Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier opened for signature at Guadalajara on 18 September 1961;

“the Hague Protocol” means the Protocol to Amend the Warsaw Convention opened for signature at The Hague on 28 September 1955;

“the Rome Convention” means the Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface opened for signature at Rome on 7 October 1952, being the Convention a copy of the authentic text of which in the English language is set out in Schedule 1;

“the Warsaw Convention” means the Convention for the Unification of Certain Rules Relating to International Carriage by Air opened for signature at Warsaw on 12 October 1929, and includes the Additional Protocol to that Convention with reference to Article 2 of that Convention.

ACT TO BIND THE STATE.

This Act binds the State.

TEXTS OF CONVENTIONS OTHER THAN THE ROME CONVENTION.

(1) Subject to this section, for the purpose of this Act the text of the Warsaw Convention shall be deemed to be the text set out in Schedule 2, being a translation into the English language of the authentic text in the French language of that Convention.

(2) Subject to this section, for the purposes of this Act the text of the Hague Protocol shall be deemed to be the text set out in Schedule 3, being a copy of the authentic text in the English language of that Protocol.

(3) Subject to this section, for the purposes of this Act the text of the Guadalajara Convention shall be deemed to be the text set out in Schedule 4, being a copy of the authentic text in the English language of that Convention.

(4) If any inconsistency is shown between the text set out in Schedule 2, Schedule 3 or Schedule 4 and the authentic text in the French language of the Warsaw Convention, the Hague Protocol or the Guadalajara Convention, as the case may be, the authentic French text prevails.

(5) A certificate in writing under the hand of the Minister that a document to which the certificate is annexed is a true copy of the authentic text in the French language of the Warsaw Convention, the Hague Protocol or the Guadalajara Convention is evidence that the document is a true copy.

PART II. – THE WARSAW CONVENTION, THE HAGUE PROTOCOL AND THE GUADALAJARA CONVENTION.

Division 1.

Carriage to which the Warsaw Convention and the Hague Protocol Apply.

INTERPRETATION OF DIVISION 1.

In this Division, “the Convention” means the Warsaw Convention and the Hague Protocol read and interpreted together as a single instrument in accordance with Article XIX of the Hague Protocol.

CONVENTION TO HAVE FORCE OF LAW.

(1) Subject to this Division, the provisions of the Convention have the force of law in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing the carriage.

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

LIABILITY IN RESPECT OF DEATH.

(1) This section applies in relation to liability imposed by the Convention on a carrier in respect of the death of a passenger (including the injury that resulted in the death).

(2) Subject to Section 8, the liability under the Convention is in substitution for any civil liability of the carrier under any other law in respect of–

(a) the death of the passenger; or

(b) the injury that has resulted in the death of the passenger.

(3) Subject to Subsection (4), the liability is enforceable for the benefit of such of the members of the passenger’s family as sustained damage by reason of his death and for the purposes of this subsection–

(a) the passenger’s family shall be deemed to consist of the wife or husband, parents, step-parents, grandparents, brothers, sisters, half-brothers, half-sisters, children, step-children and grandchildren of the passenger; and

(b) in ascertaining the members of the passenger’s family, an illegitimate person or an adopted person shall be treated as being, or as having been, the legitimate child of his mother and reputed father or, as the case may be, of his adopters.

(4) To the extent that the damages recoverable include–

(a) loss of earnings or profits up to the date of death; or

(b) funeral, medical or hospital expenses paid or incurred by the passenger before his death or by his personal representative,

the liability is enforceable for the benefit of the personal representative of the passenger in his capacity as personal representative.

(5) The action to enforce the liability may be brought by–

(a) the personal representative of the passenger; or

(b) a person for whose benefit the liability is, under the preceding provisions of this section enforceable,

but only one action shall be brought in the country in respect of the death of any one passenger, and the action is for the benefit of all persons for whose benefit the liability is so enforceable who–

(d) not being resident in the country, express the desire to take the benefit of the action.

(6) The damages recoverable in the action include–

(a) loss of earnings or profits up to the date of death; and

(b) the reasonable expenses of the funeral of the passenger; and

(c) medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of the passenger.

(7) In awarding damages, the court is not limited to the financial loss resulting from the death of the passenger.

(8) Subject to Subsection (9), the amount recovered in the action shall, after the deduction of any costs not recovered from the defendant, be divided amongst the persons entitled in such proportions as the court directs.

(9) At any stage of the proceedings the court may make any such order as appears to it to be just and equitable in view of–

(a) the provisions of the Convention limiting the liability of the carrier; and

(b) any proceedings that have been, or are likely to be, commenced against the carrier, whether in or outside the country.

(10) The second sentence of Paragraph 4 of Article 22 of the Warsaw Convention, as amended by the Hague Protocol, does not apply to an action to which this section applies that is wholly or partly for the benefit of a person or persons other than the plaintiff, but in such an action the court may deal with any question of costs in such manner as it thinks proper having regard to the operation of that sentence in cases to which it applies.

LIABILITY IN RESPECT OF INJURY.

Subject to Section 8, the liability of a carrier under the Convention in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury.

CERTAIN LIABILITIES NOT EXCLUDED.

Neither the Convention nor this Division excludes any liability of a carrier–

(a) to indemnify an employer of a passenger or any other person in respect of any liability of, or payments made by, the employer or other person under a law providing for compensation, however described, in the nature of workers’ compensation; or

(b) to pay contribution to a tort-feasor who is liable in respect of the death of, or injury to, the passenger,

but this section does not operate to increase the limit of liability of a carrier in respect of a passenger beyond the amount fixed by or in accordance with the Convention.

PROCEEDS OF INSURANCE POLICIES, ETC.

In assessing damages in respect of liability under the Convention, there shall not be taken into account by way of reduction of the damages–

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

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

(c) any sum in respect of a pension, social service benefit or repatriation benefit paid or payable, consequent on the death or injury, by any government or person; or

(d) in the case of death, any sum in respect of the acquisition by a spouse or child of the deceased, consequent on the death, of, or of an interest in–

(i) a dwelling used at any time as the home of the spouse or child; or

(ii) the household contents of any such dwelling; or

(e) in the case of death, any premium that would have become payable under a contract of insurance in respect of the life of the deceased passenger if he had lived beyond the time when he died.

CONTRIBUTORY NEGLIGENCE.

(1) Effect shall be given to Article 21 of the Warsaw Convention in accordance with this section.

(2) Where, in an action under the Convention against a carrier, the carrier proves that the damage was caused or contributed to by the negligence of the passenger or the consignor, the damages recoverable shall be assessed in accordance with this section.

(3) The court shall first determine the damages that would have been recoverable if–

(a) there were no limit on the amount of the damages fixed by or in accordance with the Convention; and

(b) there had been no negligence on the part of the passenger or consignor.

(4) The damages determined under Subsection (3) shall be reduced to such extent as the court thinks just and equitable having regard to the share of the passenger or the consignor in responsibility for the damage.

(5) Where the damages as reduced in accordance with Subsection (4) exceed the maximum liability of the carrier fixed by or in accordance with the Convention, the court shall further reduce the damages to that maximum amount.

ACTIONS AGAINST PARTIES TO THE CONVENTION WHO UNDERTAKE CARRIAGE BY AIR.

(1) A Party to the Convention which has not availed itself of the provisions of the Additional Protocol to the Warsaw Convention with reference to Article 2 of that Convention shall be deemed, for the purposes of an action under the Convention brought in a court in the country to enforce a claim in respect of carriage undertaken by that Party, to have submitted to the jurisdiction of the court.

(2) This section does not authorize the issue of execution against the property of a Party to the Convention.

EVIDENCE OF CERTAIN MATTERS.

(1) The Minister may, by notice in the National Gazette, declare–

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

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

(c) that a country specified in the notice has duly made a declaration under Article XXVI of the Hague Protocol, and the date on which the declaration became effective; or

(d) that a country specified in the notice has duly extended the application of the Hague Protocol to a territory or territories specified in the notice; or

(e) the extent (if any) to which a Party to the Hague Protocol has availed itself of the provisions of the Additional Protocol to the Warsaw Convention with reference to Article 2 of that Convention; or

(f) that a country specified in the notice has denounced the Hague Protocol in respect of–

(i) all of the territories for the foreign relations of which it is responsible; or

(ii) any such territory specified in the notice,

and the date on which the denunciation became effective.

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

Division 2.

Carriage to which the Warsaw Convention without the Hague Protocol Applies.

INTERPRETATION OF DIVISION 2.

(1) In this Division, “the Convention” means the Warsaw Convention as in force, unaffected by the Hague Protocol, between Papua New Guinea and any other country.

(2) For the purposes of this Division, a reference in the Convention to the territory of a High Contracting Party to the Convention shall be read as a reference to the territories in respect of which a Party declared, under Section 15, to be a High Contracting Party to the Convention is declared, under that section, to be bound by the Convention.

PROVISIONS OF CONVENTION TO HAVE FORCE OF LAW.

EVIDENCE OF CERTAIN MATTERS.

(1) The Minister may, by notice in the National Gazette, declare–

(a) who are the High Contracting Parties to the Convention; and

(b) the territory in respect of which any such Party is bound by the Convention; and

(c) the extent (if any) to which any Party has availed himself of the provisions of the Additional Protocol to the Convention.

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

CONVERSION OF FRANCS.

For the purposes of an action against a carrier, any sum in francs mentioned in Article 22 of the Convention shall be converted into Papua New Guinea currency at the rate of exchange prevailing on the date on which the amount of any damages to be paid by the carrier is ascertained by the court.

ADOPTION OF CERTAIN PROVISIONS OF DIVISION 1.

The provisions of Sections 6 to 11 (inclusive) other than Section 6(10) apply for the purposes of this Division as if contained in this Division.

DURATION OF DIVISION 2.

(1) This Division continues in force until a date to be fixed by the Head of State, acting on advice, by notice in the National Gazette, being a date not earlier than the date on which a denunciation by Papua New Guinea of the Convention in accordance with Article 39 of the Convention takes effect.

(2) On the date fixed under Subsection (1), this Division shall be deemed to be repealed and Section 63 of the Interpretation Act 1975 applies as if this Division had been repealed by an Act other than this Act.

Division 3.

Carriage to which the Guadalajara Convention Applies.

PROVISIONS OF CONVENTION TO HAVE FORCE OF LAW.

Subject to Divisions 1 and 2 as effected by Section 20, the provisions of the Guadalajara Convention have the force of law in relation to any carriage by air to which the Convention applies.

MODIFICATION OF DIVISIONS 1 AND 2.

In relation to carriage to which the Guadalajara Convention applies, references in Division 1 (other than in Section 5) and in Division 2 (other than in Section 14) to “the Convention” shall be read as including references to the provisions of the Guadalajara Convention as having the force of law by virtue of this Division.

EVIDENCE OF CERTAIN MATTERS.

(1) The Minister may, by notice in the National Gazette, publish information as to–

(a) the coming into operation of the Guadalajara Convention; or

(b) the States that have or have not taken any action referred to in Article XI, XII, XIV, XV or XVI of that Convention and to the particulars of any action so taken.

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

PART III. – OTHER CARRIAGE TO WHICH THIS ACT APPLIES.

INTERPRETATION OF PART III.

(1) In this Part, unless the contrary intention appears–

“airline licence” means an airline licence in force under the Civil Aviation Regulation;

“baggage”, in relation to a passenger, means–

(a) registered baggage; or

(b) baggage, personal effects or other articles, not being registered baggage, in the possession of the passenger, or in the possession of another person (being a person accompanying the passenger or a servant or agent of the carrier) on behalf of the passenger, while the passenger is on board an aircraft for the purposes of carriage to which this Part applies or during the course of any of the operations of embarking or disembarking;

“charter licence” means a charter licence in force under the Civil Aviation Regulation;

“commercial transport operations” means operations in which an aircraft is used, for hire or reward, for the carriage of passengers or cargo;

“contract” includes an arrangement made without consideration;

“registered baggage”, in relation to a passenger, means baggage, personal effects or other articles registered with the carrier as baggage intended to be carried under a contract for carriage of the passenger to which this Part applies.

(2) For the purposes of this Part, where, by reason of a contract of charter or other contract between the holder of an airline licence or a charter licence and another person, any persons or baggage are or is carried, or are or is to be carried, in an aircraft while it is being operated by the holder of the licence, the contract shall be deemed to be a contract of carriage providing for that carriage.

APPLICATION OF PART III.

This Part applies to the carriage of a passenger who is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations, or in an aircraft being operated between Papua New Guinea and another country, not being carriage to which the Warsaw Convention, the Hague Protocol or the Guadalajara Convention applies.

LIABILITY OF CARRIER FOR DEATH OR INJURY.

Subject to this Part, where this Part applies to the carriage of a passenger the carrier is liable for damage sustained by reason of the death of the passenger or any personal injury suffered by the passenger resulting from an accident that took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

LIABILITY OF CARRIER IN RESPECT OF BAGGAGE.

(1) Where this Part applies to the carriage of a passenger, the carrier is liable under this Part, and not otherwise, for damage sustained in the event of the destruction or loss of, or injury to, baggage of the passenger, if the occurrence that causes the destruction, loss or injury takes place during the period of the carriage by air unless the carrier proves that–

(a) he and his servants and agents took all necessary measures to avoid the destruction, loss or injury; or

(b) it was impossible for him or them to take such measures.

(2) For the purposes of Subsection (1) but subject to Subsection (3), the period of the carriage by air comprises–

(a) in relation to baggage other than registered baggage–the period during which the passenger is on board the aircraft or is in the course of any of the operations of embarking or disembarking; and

(b) in relation to registered baggage–the period during which the baggage is in the charge of the carrier whether on board the aircraft or elsewhere.

(3) In proceedings under this section in respect of registered baggage, if the carrier proves that within a period of 12 hours after the arrival of the aircraft at the place to which the baggage was to be carried in the aircraft the baggage was available for collection by the passenger at a place at which, under the contract, the baggage was to be or could be made available to the passenger, the period of the carriage by air shall not be deemed to include any time after the expiration of that period of 12 hours.

(4) In the application of Section 35 in relation to an action under this Part in respect of baggage other than registered baggage, the carrier shall be deemed to have proved that the damage was caused by the negligence of the passenger, except so far as the passenger proves that he was not responsible for the damage.

COMPLAINT TO BE MADE IN RESPECT OF BAGGAGE.

(1) For the purposes of an action under this Part, evidence proving receipt of registered baggage, without complaint, by the person entitled to delivery is evidence that the baggage has been delivered in good condition and in accordance with the contract of carriage.

(2) Except in case of fraud on the part of the carrier, no action lies against a carrier under this Part in respect of baggage, unless the passenger, or a person acting on his behalf, has complained by writing delivered to the carrier or served on the carrier by post or in such other manner as is prescribed–

(a) in the case of injury to registered baggage or of loss or destruction of part only of an item of registered baggage–within the period of three days after the date of receipt by or on behalf of the passenger of the baggage, or of the remainder of the item of baggage, as the case may be; or

(b) in the case of loss or destruction of the whole of an item of registered baggage–within the period of 21 days after the date on which the baggage should have been placed at the disposal of the passenger; or

(c) in the case of injury to, or loss or destruction of, baggage other than registered baggage–within the period of three days after the date on which the carriage of the passenger ended.

(3) Where the court is satisfied that it is just and equitable to do so by reason of special circumstances, a court having jurisdiction in actions under this Part in respect of baggage may, by order, grant leave to a person to institute or continue an action in the court in relation to baggage notwithstanding that there has been a failure to complain in accordance with Subsection (2) within the time fixed by that subsection.

(4) Subsection (2) does not apply in relation to an action in respect of which leave has been granted under Subsection (3).

LIMITATION OF LIABILITY.

(1) Subject to the regulations relating to passenger tickets, the liability of the carrier under this Part in respect of each passenger, by reason of his injury or death, is limited to the sum of K30,000.00 or such higher sum as specified in the contract of carriage.

(2) Subject to the regulations relating to baggage checks, the liability of the carrier under this Part in respect of the baggage of any one passenger, being baggage that is or includes registered baggage, is limited to the sum of K300.00 or such higher sum as specified in the contract of carriage.

(3) The liability of the carrier under this Part in respect of the baggage, other than registered baggage, of any one passenger is limited to the sum of K30.00 or such higher sum as specified in the contract of carriage.

CONTRACTING OUT.

(1) Any provision of an agreement tending to relieve the carrier of liability in accordance with this Part or to fix a lower limit than the appropriate limit of liability provided by this Part is null and void, but the nullity of such a provision does not involve the nullity of the whole contract of carriage.

(2) Subsection (1) does not apply to provisions governing loss or damage resulting from the inherent defect, quality or vice of goods carried.

SERVANTS AND AGENTS OF CARRIER.

(1) Where an action in respect of any damage is brought against a servant or agent of a carrier, the servant or agent, if he proves that he acted within the scope of his employment or authority, is entitled to avail himself of the limits of liability (if any) that the carrier himself would be entitled to invoke under Section 27 in an action against him in respect of the damage.

(2) The aggregate of the amounts recoverable from the carrier, his servants and agents shall not exceed the limits referred to in Subsection (1).

(3) The right to bring an action against a servant or agent of a carrier in respect of any damage, being damage that gave rise to a cause of action against the carrier under this Part, is extinguished if the action is not brought within the time specified in Section 30.

LIMITATION OF ACTIONS.

The right of a person to damages under this Part is extinguished if an action is not brought by him or for his benefit within two years after the date of arrival of the aircraft at the destination, or, where the aircraft did not arrive at the destination–

(a) the date on which the aircraft ought to have arrived at the destination; or

(b) the date on which the carriage stopped,

whichever is the later.

LIABILITY IN RESPECT OF DEATH.

(1) This section applies in relation to liability imposed by this Part on a carrier in respect of the death of a passenger (including the injury that resulted in the death).

(2) Subject to Section 33, the liability under this Part is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger.

(3) Subject to Subsection (4), the liability is enforceable for the benefit of such of the members of the passenger’s family as sustained damage by reason of his death, and for the purposes of this subsection–

(4) To the extent that the damages recoverable include–

(a) loss of earnings or profits up to the date of death; or

(b) funeral, medical or hospital expenses paid or incurred by the passenger before his death or by his personal representative,

the liability is enforceable for the benefit of the personal representative of the passenger in his capacity as personal representative.

(5) The action to enforce the liability may be brought by–

(a) the personal representative of the passenger; or

(b) a person for whose benefit the liability is, under the preceding provisions of this section, enforceable,

but only one action shall be brought in respect of the death of any one passenger, and the action is for the benefit of all persons for whose benefit the liability is so enforceable who–

(d) not being resident in the country, express the desire to take the benefit of the action.

(6) The damages recoverable in the action include–

(a) loss of earnings or profits up to the date of death; and

(b) the reasonable expenses of the funeral of the passenger; and

(c) medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of a passenger.

(7) In awarding damages, the court is not limited to the financial loss resulting from the death of the passenger.

(8) Subject to Subsection (7), the amount recovered in the action shall, after the deduction of any costs not recovered from the defendant, be divided amongst the persons entitled in such proportions as the court directs.

(9) At any stage of the proceedings the court may make any such order as appears to it to be just and equitable in view of–

(a) the provisions of this Part limiting the liability of the carrier; and

(b) any proceedings that have been, or are likely to be, commenced against the carrier, whether in or outside the country.

LIABILITY IN RESPECT OF INJURY.

Subject to Section 33, the liability of a carrier under this Part in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury.

CERTAIN LIABILITIES NOT EXCLUDED.

This Part does not exclude any liability of a carrier–

(a) to indemnify an employer of a passenger or any other person in respect of any liability of, or payments made by, the employer or other person providing for compensation, however described, in the nature of workers’ compensation; or

(b) to pay contribution to a tort-feasor who is liable in respect of the death of, or injury to, the passenger,

but this section does not operate to increase the limit of liability of a carrier in respect of a passenger beyond the amount fixed by or in accordance with this Part.

PROCEEDS OF INSURANCE POLICIES, ETC.

In assessing damages in respect of liability under this Part, there shall not be taken into account by way of reduction of the damages–

(a) any sum paid or payable, under a contract of insurance, on the death of, or an injury to, a passenger; or

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

(c) any sum in respect of a pension, social service benefit or repatriation benefit paid or payable, consequent on the death or injury, by any government or person; or

(d) in the case of death, any sum in respect of the acquisition by a spouse or child of the deceased, consequent on the death, of, or of an interest in–

(i) a dwelling used at any time as the home of the spouse or child; or

(ii) the household contents of any such dwelling; or

(e) in the case of death, any premium that would have become payable under a contract of insurance in respect of the life of the deceased passenger if he had lived beyond the time when he died.

CONTRIBUTORY NEGLIGENCE.

(1) Where, in an action under this Part, against a carrier the carrier proves that the damage was caused or contributed to by the negligence of the passenger, the damages recoverable shall be assessed in accordance with this section.

(2) The court shall first determine the damages that would have been recoverable if–

(a) there were no limit on the amount of the damages fixed by or in accordance with this Part; and

(b) there had been no negligence on the part of the passenger.

(3) The damages determined under Subsection (2) shall be reduced to such extent as the court thinks just and equitable having regard to the share of the passenger in responsibility for the damage.

(4) Where the damages as reduced in accordance with Subsection (3) exceed the maximum liability of the carrier fixed by or in accordance with this Part, the court shall further reduce the damages to that maximum amount.

REGULATIONS RELATING TO PASSENGER TICKETS AND BAGGAGE CHECKS.

The regulations may make provision relating to passenger tickets and baggage checks in respect of passengers or baggage in relation to whom or which this Part applies, in relation to–

(a) the circumstances in which such tickets and checks must be issued by carriers; and

(b) matters to be included in such tickets and checks; and

(c) the non-application of any provision of Section 27 (except where the limit of liability under the provision is a sum specified in the contract of carriage) where specified provisions of the regulations relating to the issue, form and contents of such tickets or checks have not been complied with.

APPLICATION OF PART III TO CARGO.

(1) Subject to Subsection (2), the regulations may provide for applying, with such exceptions, adaptations and modifications as are prescribed, the provisions of the Warsaw Convention, the Hague Protocol and the Guadalajara Convention and any of the provisions of this Act to and in relation to the carriage of cargo, being carriage in relation to which, if it were the carriage of passengers, this Part would apply.

(2) No adaptation or modification under Subsection (1), of the provisions of Article 22 of the Warsaw Convention, as replaced by Article XI of the Hague Protocol, has the effect of limiting the liability of the carrier to a sum less than the sum to which his liability would be limited if those provisions were applied without adaptation or modification.

PART IV. – DAMAGE CAUSED BY AIRCRAFT TO PERSONS ON SURFACE.

Division 1.

Preliminary.

INTERPRETATION OF PART IV.

In this Part, unless the contrary intention appears–

“contracting State” means a country, other than Papua New Guinea, that is bound by the Convention;

“the Convention” means the Rome Convention.

Division 2.

Damage to which the Rome Convention Applies.

CONVENTION TO HAVE THE FORCE OF LAW.

(1) The provisions of the Convention have the force of law.

ACTIONS UNDER CONVENTION.

(1) Where damage in relation to which the Convention applies occurs in the country, no action under the Convention in respect of the damage lies in the country except in a court having jurisdiction in relation to the place where the damage occurs.

(2) Where an action under the Convention is pending in the National Court, no action under the Convention arising out of the same incident (other than an action instituted before the institution of the action in the National Court) lies in any other court.

(3) Where actions under the Convention arising out of a single incident are pending in two or more courts, the National Court may, on the application of the defendant in any such action (or, if there is more than one defendant, on the application of any defendant), order any such action to be removed into the National Court, on such terms and conditions as the National Court thinks proper.

CONSOLIDATION OF ACTIONS.

(1) Where two or more actions under the Convention, arising out of a single incident, are pending in a court, the court may make such orders as it thinks proper, on such terms and conditions as it thinks fit, for the purpose of ensuring, so far as the interests of justice and convenience permit, that all of the actions are consolidated for disposal in a single proceeding.

(2) Subsection (1) does not prejudice any power of a court under any other law with respect to any actions to which that subsection applies.

LIABILITY IN RESPECT OF DEATH.

(1) This section applies in relation to the liability imposed by the Convention on a person in respect of the death of another person.

(2) The action to enforce the liability may be brought by–

(a) the personal representative of the deceased person; or

(b) one of the persons who suffered damage by reason of the death,

but only one action shall be brought in the country in respect of the death of any one person and the action is for the benefit of all persons for whose benefit the liability is enforceable who–

(d) not being resident in the country, express the desire to take the benefit of the action.

(3) The damages recoverable in the action include–

(a) loss of earnings or profits up to the date of death; and

(b) the reasonable expenses of the funeral of the deceased person; and

(c) medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of the deceased person.

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

(5) Subject to Subsection (6), the amount recovered in the action shall, after the deduction of any costs not recovered from the defendant, be divided amongst the persons entitled in such proportions as the court directs.

(6) At any stage of the proceedings the court may make any such order as appears to it to be just and equitable in view of the provisions of the Convention limiting the liability of the defendant.

PROCEEDS OF INSURANCE POLICIES IN RELATION TO DEATH OR INJURY.

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

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

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

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

ACTIONS AGAINST CONTRACTING STATES AS OPERATORS OF AIRCRAFT.

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

(2) This section does not authorize the issue of execution against the property of a contracting State.

EVIDENCE OF CERTAIN MATTERS.

(1) The Minister may, by notice in the National Gazette, declare–

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

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

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

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

(e) that a country specified in the notice has denounced the Convention in respect of–

(i) all of the territories for the foreign relations of which it is responsible; or

(ii) any such territory specified in the notice,

and the date on which the denunciation became effective.

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

Division 3.

Other Damage to which Part IV Applies.

APPLICATION OF DIVISION 3.

(1) This Division applies to an aircraft registered in Papua New Guinea that, while being moved between Papua New Guinea and another country, is in flight in Papua New Guinea–

(a) in the course of a journey of the aircraft between a place in Papua New Guinea and a place outside Papua New Guinea (with or without intermediate stopping-places in Papua New Guinea); or

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

(2) This Division also applies in relation to an aircraft, not being an aircraft registered in Papua New Guinea or in a contracting State, that is being moved between Papua New Guinea and another country and is in flight in Papua New Guinea.

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

APPLICATION OF PROVISIONS OF CONVENTION.

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

(2) For the purposes of this section, where in a provision of the Convention that applies by virtue of this section there is a reference to the Convention, that reference shall be read as a reference to the provisions of the Convention that apply by virtue of this section, as so applying.

(3) The provisions of Chapter II, and of Articles 19 and 21, of the Convention do not apply to an aircraft referred to in Section 46(2), and in the application of the provisions of the Convention that apply to such an aircraft all references to the limits of liability provided by Chapter II of the Convention shall be deemed to be omitted.

APPLICATION OF CERTAIN PROVISIONS OF DIVISION 2.

Sections 40, 41, 42 and 43 apply for the purposes of this Division in like manner as they apply for the purposes of Division 2, but in the application of those sections any reference to the Convention shall be read as a reference to the provisions of the Convention that apply by virtue of this Division, as so applying.

COMPULSORY INSURANCE.

(1) The Minister may, by written notice, prohibit a person from operating an aircraft in circumstances in which the aircraft would be an aircraft to which this Division applies unless there is in force a certificate in writing issued by the Minister certifying that the person is insured, to the satisfaction of the Minister, against liability under this Division to an extent corresponding to the extent to which an operator may be required to be insured under Chapter III of the Convention.

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

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

PART V. – MLSCELLANEOUS.

STOWAWAYS.

(1) Where a person travels in an aircraft without the consent of the carrier and Part II or Part III would apply in relation to the carriage if he were a passenger carried, under a contract for his carriage for reward, between the place where he boarded the aircraft and his place of disembarkation, the liability (if any) of the carrier, or of his servants or agents, in respect of the person and his baggage is subject to the limits as to amounts that are applicable in respect of passengers under that Part.

(2) This section does not impose any liability on a carrier, or a servant or agent of a carrier, to which he is not subject apart from this section.

(3) For the purposes of this section, the place of disembarkation of a person shall be deemed to be the next scheduled stopping-place after the place at which he boards the aircraft or, if he continues on board after the aircraft leaves that next scheduled stopping-place, the scheduled stopping-place next after the last stopping-place from which the aircraft departed with him on board.

REGULATIONS.

(1) The Head of State, acting on advice, may make regulations, not inconsistent with this Act, prescribing all matters that by this Act are required or permitted to be prescribed, or that are necessary or convenient to be prescribed for carrying out or giving effect to this Act, the Warsaw Convention, the Warsaw Convention as affected by the Hague Protocol, the Guadalajara Convention and the Rome Convention.

(2) The regulations in respect of the Rome Convention may prescribe, in particular, matters in relation to–

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

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

(3) The regulations for carrying out or giving effect to Article 20 of the Rome Convention may include regulations–

(a) prescribing the courts by which judgements referred to in that Article may be enforced and the formalities that are to be complied with before such a judgement may be so enforced; and

(b) providing that an application to a court for execution of a judgement referred to in that Article shall be made by way of, or shall be preceded by, an application for registration of the judgement in the court; and

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

(d) prohibiting, restricting or regulating actions or proceedings in courts on foreign judgements in respect of liability under the Convention, for the purpose of preventing the use of such actions or proceedings as a means of evading the limitations on rights of execution of such judgements contained in Article 20 of the Convention.

SCHEDULE 1 – CONVENTION ON DAMAGE CAUSED BY FOREIGN AIRCRAFT TO THIRD PARTIES ON THE SURFACE.

Sec. 1.

CONVENTION

SCHEDULE 2 – CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR.

Sec. 3(1).

CONVENTION

SCHEDULE 3 – PROTOCOL TO AMEND THE CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR SIGNED AT WARSAW ON 12 OCTOBER 1929.

Sec. 3(2).

PROTOCOL

SCHEDULE 4

Sec. 3(3).

CONVENTION – SUPPLEMENTARY TO THE WARSAW CONVENTION, FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR PERFORMED BY A PERSON OTHER THAN THE CONTRACTING CARRIER.

Office of Legislative Counsel, PNG

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