Book Name: Commercial Law and Industrial Law 26th Edition
Writer: Arun Kumar Sen, Jitendra Kumar Mitra
CARRIAGE BY AIR
LAW RELATING TO AIR CARRIAGE
Application
The Carriage by Air Act; (Act no. 69 of 1972) was passed with objectives of getting power to apply the rules contained in the Warsaw Convention as amended by the Hague Protocol also to non-international carriages subject to exceptions, adaptations and modifications.
Convention
This is a set of rules drafted and agreed in an assembly of delegates or representatives of different State$, for the purposes of regulating a subject. In air carriage several rules (or the convention) were adopted in the Treaty at Warsaw (1929) and Hague (1955).
Warsaw Convention
The law relating to carriage by air in India was based upon a draft convention drawn up in the international conference held in Warsaw in 1929. The Warsaw Convention was given effect to in India by the enactment of the Indian Carriage by Air Act, 1934. The provisions of that Act were extended to domestic, carriage, subject to certain exceptions, adaptations and modifications, issued by a notification on 1st March, 1964.
Hague Protocol
A diplomatic conference under the auspices of International Civil Aviation Organization was held at Hague in September, 1955 which adopted a protocol to amend the provisions of the Warsaw Convention. The Hague Protocol was opened for signature on 28th September, 1955, and came into force between the ratifying States on 1st August, 1963.
High Contracting Party
This means those parties (that is representatives of the states) who attended and were the signatories to the convention of Warsaw Convention and the Protocol of the Hague Convention rule 1(1) and (2), 2nd -Schedule, Protocol of the Hague Convention.
Fifty-seven countries have already ratified in Hague Protocol and passengers traveling between those countries were ensured of the higher limit of compensation.
International Carriage by Air. (See p. 394)
THE DOCUMENTS OF CARRIAGE
The Act of 1972 provides that certain documents are to be issued when goods and passengers are carried by air. They are as follows:
The Passenger Ticket
Whenever a passenger is carried, he must be given a ticket arid the ticket must contain the following particulars ; the place and date pf issue; the names of the places of departure and destination ; the agreed stopping places and their changes; the name and address of the carrier, and a statement that the carriage is subject to the provisions of the Act of 1972 and to its Schedules.
The Luggage Ticket or Baggage Check
For all luggage other than personal goods in charge of the passenger, a luggage ticket must be issued. The luggage ticket must contain all the particulars necessary to be included in a passenger ticket and in addition must mention the number and weight of the packages and a statement that the luggage shall be delivered to the holder of the luggage ticket.
The Air Consignment Note or Air Waybill
Whenever goods are carried, the carrier can insist upon the consignor making out three copies of a Note or Waybill containing the following particulars; the place and date of its issue ; the places of departure, destination and stoppages ; the names and addresses of carriers ; the names and addresses of the consignor and the consignee ; the nature of the–goods, including a statement of the number of packages, the method of packing, their weight, quantity, volume and dimensions and the apparent condition of the goods ; the amount of the freight and the persons liable to pay it ; the period of the carriage and the route ; and a statement that the carriage is subject to the rules contained in the Act.
The Air Consignment Note or Air Waybill to be issued in triplicate. One copy is to be kept by the carrier; one copy signed by both the carrier and the consignor is to accompany the goods; and the third copy is to be kept by the consignor. The consignor is responsible for the correctness of the particulars in the Note and is liable to pay all damages, if any, arising from incorrect statements."The air waybill is prima facie evidence of the conclusion of the contract, of the receipt of the cargo and of the conditions of carriage."-Rule 11(l), 2nd Schedule."The statements in the air waybill relating to the weight, dimensions and packing of the cargo, as well as those relating to the number of packages, are Prima facie evidence of the facts stated; those relating to the quantity, volume and condition of the, cargo do not constitute evidence against the carrier except so far they both have been, and the contract of carriage, the consignor has the right to dispose of the presence of the consignor, or relate to the apparent condition of the cargo. " Rule 11(2), 2nd Schedule.
RIGHTS AND DUTIES
Consignor
The consignor may withdraw the goods from the custody of the carrier at the place of departure or destination or at any intermediate station. He may change the name of the consignee.
He cannot however exercise any of these rights in such a way as to prejudice the interests of the carrier. The consignor must also pay all necessary expenses.
Consignee
The consignee is entitled to take delivery of the goods at the place of destination. If the goods are lost or do not arrive at the place of destination within seven days of the date of delivery, he can enforce his rights under the contract of carriage.
INTERNATIONAL CARRIAGE BY AIR
Definition
Under the carriage by Air Act of 1972, `International Carriage' means, `Carriage when the place of departure and the place of destination of an aircraft are situated within the territory of two high contracting parties or within the territory of a single high contracting party if there is agreed of stopping place within the territory subject to the sovereignty –suzerainty, mandate or authority of another power." Other features of international carriage are stated below:
1. The rules of the Carriage by Air Act of 1972 apply to baggage or cargo performed by aircraft for reward.
2. The rules also apply- gratuitous carriage by aircraft performed an air transport undertaking.
3. "Carriage to be performed by several successive air carriers is deemed, for the purposes of these rules, to be one undivided carriage if it has been regarded by the parties as a single operation.”-Rule 1(4), 2nd Schedule.
4. "These rules apply to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in rule l, (above). These rules shall not apply to carriage of mail and postal packages."-Rule 2(1) and (2), 2nd Schedule.
When liable
The Protocol of Hague Convention provides that the carrier ~ by air is, subject to certain rules mentioned below, liable to pay, damages in the following cases:
1. Death or bodily injury suffered by a passenger, if the accident which caused the injury occurred during’ carriage or during embarking or disembarking.
2. Destruction or toss of, or damage to, and Registered luggage or any goods during the time they are in charge of the carrier, on the plane, in the aerodrome or elsewhere.
3. Delay in the carriage of passengers, luggage or goods.
Rules limiting the liability of the Carrier
In international carriage by Air, the carrier is not liable to pay any damages in the following cases:
1. If he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.
2. If he proves that there was contributory negligence on the part of the injured persons. In this case the Court may, in accordance with the provisions of its own law, exonerate the carrier from liability either wholly or partially.
Liability in case of death
(Sec. 5, Carriage by Air Act, 1972). Notwithstanding any thing contained in the Fatal Accidents Act, 1855 or any other enactment or rule of law in force in any parts of India, the rules contained in the First Schedule and in the Second Schedule shall in all cases to which those rules apply; determine the liability of a carrier in respect of the death of a passenger.
The liability shall be enforceable for the benefit of such of the members of the passenger's family as sustained damage by reason of his death.
The expression "member of a family" means wife or husband, parent, step-parent, grand-parent, brother, sister, half-brother, half-sister, child, step-child, and grandchild. (The expression includes illegitimate persons and adopted persons.)
The amount recovered in any such action, after deducting any costs not recovered from the claimant, shall be divided between the persons entitled in such proportion as the court may direct.
Quantity of Damages
The maximum amounts of damages payable by the carrier, as limited by the Act, are stated below:
(i) Death or injury of a passenger-1,25,U00 francs (by the Warsaw Convention as in the First Schedule to the Act) and 2,50,000 francs (by the Protocol of Hague, as stated in Second Schedule to the Act).
(ii) Luggage in custody of a passenger-up to 5000 francs.
(iii) Goods of a passenger delivered to the air carrier-250 francs per kg.
(iv) Franc means 652 milligram of gold.
(v) Where the liability of the carrier is limited to 2, 50,000 francs, the court may award it in a form of periodical payment, with equivalent capital value of the above.
The carrier may, by a special agreement, increase his liability but cannot reduce it.
INTERNAL CARRIAGE BY AIR
The Carriage by Air Act of 1934 is applicable to international air carriage (summarized above) and not to internal carriage by air. The Government of India extended the law of international carriage by air to the internal carriage by air by notification with the effect to 1st March, 1964. Prior to the above date, the liabilities of the internal air carrier are still governed by the Common law. According to that law, the internal. carrier by air may, by special agreement, reduce or exclude his liabilities.
Before the notification of 1$t March, 1964, came into ,force, the plaintiff had no remedy for his claim even if there was negligence on the part of the carrier. Indian Airlines Corporation v. Jothaji Maniram. Mukul Dutta Gupta v. Indian Airlines Corporation. When the deceased had by a contract during his life time excluded himself from the right to claim damages, his heirs or personal representatives were not entitled to claim damages even under the Fat,1l Accidents Act, 1855. Indian Airlines Corporation v. Madhuri Chowdhuri and others.
THE PROCEDURE FOR REALISING DAMAGES
The person entitled to damages must complain to the carrier within 7 days of the date of delivery in case of loss of or damage to luggage, 14 days in a similar case regarding goods, and 21 days in cases where damages are claimed for delay in transit. Suits may be filed in the court having jurisdiction over the place of destination' or over the place of business or residence of the carrier. In case of the death of a passenger, the suit, for compensation may be filed by his legal representative.
Suits must be filed within two years of the date of arrival of the carrier at the place of destination or the date on which it should have arrived or the date on which the carriage stopped.
When there are successive carriages with different carriers covered by the same documents or Carriages-
(a) Actions for damages to passengers are to be brought against the carrier at the time of the accident, unless otherwise agreed; and
(b) In actions for damage to luggage and goods, the consignor is to sue the first carrier; the consignee, the last carrier; but passengers may sue all the carriers.