HOVERCRAFT (CIVIL LIABILITY) (Hansard, 5 April 1971)

§ The Under-Secretary of State for Trade and Industry (Mr. Anthony Grant)
I beg to move, That the Hovercraft (Civil Liability) Order 1971, a draft of which was laid before this House on 19th January, be approved. The purpose of the Order, which is the first made under Section 1 of the Hovercraft Act, 1968, to be presented to this House, is to lay down the principles applying to liability in respect of passengers, baggage and cargo carried by hovercraft and to third party liability in respect of hovercraft.
In drafting the Order, the lines laid down in Section 1(1)(i) of the Hovercraft Act have been followed. Thus, as regards liability for passengers and their baggage, the aviation system has been applied. This system, so far as international journeys undertaken in civil aircraft is concerned, is based on the Warsaw Convention of 1929 as amended by the Hague Protocol of 1955. The United Kingdom, under the Carriage by Air Act, 1961, applied this system to non-international carriage also and with a higher limit.
In practice, the limit of liability under the aviation system may differ according to the journey involved. At the lower end, in respect of a one-way journey from the United Kingdom to a country not party to the Hague Protocol, the limit is £3,500. At the other extreme, for a journey touching upon the United States and for non-international carriage, such as a domestic journey, the limit is £24,000.
A feature of the aviation system is that the carrier is liable without proof of negligence unless he proves that he and his servants and agents took all necessary measures to avoid the damage, but by way of a quid pro quo the liability of the carrier is limited unless wilful misconduct is established. And, unlike the marine system, the carrier by aircraft is not permitted to contract out of liability or for lower limits.
In deciding on the limits of liability for passengers and baggage carried by hovercraft, regard has been paid to the interests of the public, on the one hand, 200 and the interests of the hovercraft operators, who compete mainly with ships, on the other. After consultation with the industry, a limit of £12,000 has been inserted in the draft Order in respect of the liability for each passenger. The limits proposed for baggage are the same as for aviation, namely, £7 per kilo in the case of registered baggage and £138 per passenger in respect of baggage looked after by the passenger.
On the question of liability in respect of cargo, Section 1 of the Hovercraft Act provides that the marine system should be applied. The Order adapts the Carriage of Goods by Sea Act, 1924, which applies the Hague Rules to outward bills of lading. The limit proposed in the Order is the same as for ships, namely, £100 gold. Under a protocol signed in Brussels in February, 1968, the limit is raised to about £270, but it is likely to be some time before this new limit comes into effect for ships. When it does, we intend to apply it to hovercraft.
The foundation of the marine system is the issue of a bill of lading. If this document is not issued the limits do not apply. If a bill of lading is issued there are various circumstances in which the shipowner can escape liability. Loss due to fire on board is one such circumstance.
Finally, the Order provides for an overall limitation of liability which is of benefit to hovercraft in the event of collision. This limitation does not include death or injury to passengers on board the hovercraft itself, or loss or damage to their baggage, and it applies only to navigable waters or otherwise in a maritime environment. The limit proposed in the Order is £3.50 per kilo of the maximum weight of the hovercraft; this includes a separate limit of £1 per kilo of the maximum weight in respect of damage to cargo on board the hovercraft plus damage to property outside the hovercraft.
The draft Order also applies to hovercraft, under Section 1(1)(h) of the Hovercraft Act, 1968, the relevant provisions of the Maritime Conventions Act, 1911, regarding the apportionment of liability in the event of collision and provides for limitation of liability in respect of Her Majesty's Hovercraft by extending to 201 hovercraft parts of the Crown Proceedings Act, 1947.
I commend the Order to the House.

§ Mr. Bruce Millan (Glasgow, Craigton)
I am grateful to the hon. Member for the clear explanation that he has given of the Order, which eliminates a number of questions that I had intended to ask him. Before I say anything about the one or two points that I still wish to raise, I should refer to the undertaking given by the then Government—the Labour Government—when the Hovercraft Act went through in 1968, that when these Orders were prepared and were ready for presentation to the House there would be an opportunity for the Opposition to consider them in consultation with the Minister. That was an undertaking given at the time because the then Opposition were very worried about the nature of the Hovercraft Act, 1968, which is simply a part of the enabling legislation. The substantive legislation is included in Orders in Council—some, like the one with which we are now dealing, subject to the affirmative procedure and others to the negative procedure, where it is even more important that we should have this kind of discussion.
The hon. Member has kindly written to my right hon. Friend the Member for Barnsley (Mr. Mason) about this matter, and just to put it on the record I would tell the Minister that when other Orders come along, concerning registration, hovercraft safety, noise, certification, accidents, and duties of captains and operators, we should very much welcome an opportunity of asking what is proposed, so that we can make comments about the Orders before they come before the House. I hope that the hon. Member can confirm that undertaking this evening.
As I have said, the hon. Gentleman has given a clear explanation of the Order. I accept what he said about the laying down of liability at £12,000 in respect of passengers. Obviously we have to strike some balance here, and I should not quarrel with the figure that the Government have chosen.
Perhaps the Minister will deal with one point about baggage that I find rather puzzling. In paragraph 5(a) of the Order it is pointed out that 202 a vehicle and its contents shall not be treated as baggage. Since we are applying aviation law, it would have been surprising if a vehicle and its contents had been treated as baggage for air transport purposes. They seem to be excluded here, but, if that is so, may I ask the hon. Gentleman whether a vehicle and its contents are covered in some other way? If they are not treated as baggage, are they covered as cargo, for example, so that, if damage or loss occurs, at least the passenger concerned is covered for the vehicle?
The other point arises from the question of the overall limitation of liability, which is dealt with in pages 18 to 21 of the Order. I am a little puzzled by the Explanatory Note on page 21, which says that the overall limitation of £3.50 per kilogram refers to property. As I read paragraph 503 on page 18, it seems that the £3.50 per kilogram refers not just to property but also to third party liability to persons as well. The limitation in respect of property is much lower than that, namely, £1 per kilogram. If I followed what the Minister said, he seemed to confirm my reading of the Order. But that is not what the Explantory Note says in paragraph 4. I should be grateful if the hon. Gentleman could clear up that point.
Rather more important is what this overall limitation of liability means in practice. This must depend on the weight of the hovercraft. The overall limitation of liability is related to the weight of the hovercraft and, in the case of some smaller hovercraft, a minimum liability is laid down. I have no idea of the weight of a hovercraft or of between what limits hovercraft vary in weight. It might help if the hon. Gentleman gave some indication of what these limitations mean in practice.
It is not very useful to adopt provisions of the Acts relating to the carriage of goods by sea and then subsequently to put overall limitations on liability which may make these other provisions nugatory. I am not sure whether that is not possible under the provisions relating to overall liability. I should be grateful if the hon. Gentleman could deal with this point, because, in my ignorance of what hovercraft are likely to weigh in practice, it is not clear to me.
203 I welcome this as the first Order under the Hovercraft Act, 1968. I hope very much that the subsequent Orders will not be too long in coming, because some deal with very important matters, and it is a defect in our existing legislation that many aspects of hovercraft operations are not satisfactorily dealt with legislatively. It is now three years since the Hovercraft Act, 1968. Two of them, admittedly, were under the previous Government, so we on this side bear our share of responsibility for any delay. But I hope, nevertheless, that the subsequent Orders will come along fairly soon in the future.

§ Mr. Anthony Grant
With the leave of the House, I will endeavour to deal with the points raised by the hon. Member for Glasgow, Craigton (Mr. Millan).
His first point concerned the reference in article 5(a) to the words … a vehicle and its contents shall not be treated as baggage …". Under civil aviation law, vehicles have been treated as baggage. We want to make it clear that, in respect of hovercraft, this should not be treated as baggage for the purpose of the Statute.

§ Mr. Millan
Is it cargo?

§ Mr. Grant
I understand that that may be the case.
The hon. Gentleman went on to refer to the limitation on liability of £3.50 per kilo. This is intended to refer to property and personal injury outside the hovercraft. In other words, if a person sustains injury while in a hovercraft his personal injury liability is limited to £12,000, though he may, of course, be able to claim against, for example, the owners of another hovercraft with which, perhaps, the hovercraft in which he was travelling collided. He might then have a claim for negligence. In that event it is possible that he could have a further claim, but this could be limited to £3.50 per kilo. I assure the hon. Gentleman that we will look carefully at the explanatory note to ensure that it is clear on this point.
The hon. Gentleman then drew attention to an undertaking given under the Labour Government by the then Minister, his hon. Friend the Member for Huddersfield, East (Mr. J. P. W. Mallalieu), 204 on Second Reading of the Act. We do not necessarily feel bound by undertakings given by a previous Administration. However, I will be prepared, as I have made clear, to enter into inter-party discussions on the matter, if they should be required, before the next Instrument is brought before the House.