CARRIAGE BY AIR ACTS (APPLICATION OF PROVISIONS) ORDER 1967 (Hansard, 19 December 1966)

§ THE PARLIAMENTARY SECRETARY, BOARD OF TRADE (LORD RHODES)
My Lords, I beg to move that the Carriage by Air Acts (Application of Provisions) Order 1967, a copy of which was laid before noble Lords on December 7, be approved. The Warsaw Convention of 1929 is, I believe, the most widely ratified of international conventions in the field of private law, 85 States being parties, including the United States and the U.S.S.R. It ensures a measure of international uniformity in the law governing international carriage by air, thereby removing difficult and perhaps expensive litigation as to which country's law applies. It also confers on passengers and their dependants, and on the shippers of cargo, the reversal of the burden of proving the carrier's negligence, in exchange for which the carrier enjoys a uniform limit of liability, which makes easier the arrangement of insurance. In the absence of wilful misconduct on the part of the carrier, his servants or agents, this limit is at present equivalent to some £3,000 per passenger.
The Carriage by Air Act 1932 gave effect in the United Kingdom to this Convention, and the Carriage by Air (Non-international Carriage) (United Kingdom) Order 1952, made under the provisions of that Act, applied the same limit of liability to domestic and other carriage not covered by the Convention. Under the Act and the Order, therefore, the same limit is applied to all carriage, whatever the point of departure and destination or the nationality of the passenger or shipper, and it makes no difference where the accident occurs or which airline is involved. The Hague Protocol of 1955 made a number of amendments to 1835 the Warsaw Convention and in particular raised the limit of liability from £3,000, which was generally agreed among the nations to have become too low, to some £6,000. It has now been ratified by 49 countries. Section 1 of the Carriage by Air Act 1961 gives effect in the United Kingdom to the Warsaw Convention as amended by the Hague Protocol, thereby enabling the Protocol to be ratified by the United Kingdom, but this section has not yet been brought into force and the Protocol has not yet been ratified by the United Kingdom.
In the meantime international discussions have begun under the auspices of the International Civil Aviation Organisation with a view to the further amendment of the Hague/Warsaw system and in particular a further possible increase in the limit of liability of £6,000, which with the passing of the years has once again come to be regarded as on the low side. It is the Government's hope that these discussions will be successful, but we recognise that several years are likely to pass before a new Convention or Protocol is drawn up, signed and ratified by a sufficient number of States. We think, therefore, that we should, without more ado, proceed to ratification of the Hague Protocol, and are planning to lodge the instrument of ratification with the Polish Government on March 3, 1967. Allowing for the 90 days that must elapse before it becomes effective, the Protocol will then be in force for the United Kingdom as from June 1 next.
On the same day the Carriage by Air Act 1932, which gave effect to the provisions of the original Warsaw Convention, will be repealed by virtue of Section 1(3) of the 1961 Act and the Carriage by Air (Non-International Carriage) Order 1952 made under it will accordingly cease to have effect. It is proposed that that Order, which, as I have said, applied the Warsaw provisions, with some exceptions and adaptations, to domestic and other carriage not governed by the Convention, should be replaced by the draft Carriage by Air Acts (Application of Provisions) Order 1967 which is proposed to be made under Section 10 of the Act of 1961, and which is now before noble Lords.
The main provisions of the draft Order are: one, it applies to domestic and 1836 other carriage which is not governed by either the unamended or amended Warsaw Convention, the principles of the amended Convention. As permitted by Section 10, however, a number of "exceptions, adaptations and modifications" are made: for example, the omission of the requirements as to documentation and of the restriction of the courts in which actions may be brought. A matter of more general interests, and one which I think will be particularly welcomed by noble Lords, is that the draft Order raises the carrier's limit of liability in respect of domestic carriage and other types of carriage to which it applies, to some £21,000 per passenger instead of the £6,000 which is the limit in the Hague Protocol; two, it applies the principles of the amended Convention to the carriage of air mail, with similar exceptions, adaptations and modifications; three, as a transitional provision, it applies, with the necessary modifications, those principles to the diminishing amount of carriage which will continue to be governed by the unamended Warsaw Convention, to which the United Kingdow remains a party; four, it applies the Warsaw-Hague system to gratuitous carriage by the Crown, carriage by the Crown for reward already being governed by that system; and five, as permitted by Section 10(3) of the 1961 Act it gives the Board of Trade power to exempt any class of carriage from the requirements imposed by the Order.
If the draft Order is approved and both the Order and the Hague Protocol come into effect in this country on June 1, 1967, there will then be three classes of carriage governed by their provisions: one, carriage governed by neither the amended nor the unamended Convention where the £21,000 limit willapply—for example, London-Glasgow, London-Gibraltar non-stop, and London-Istanbul non-stop since Turkey is not yet a party to either the Protocol or the unamended Warsaw Convention. The second is carriage governed by the Warsaw Convention as amended by the Hague Protocol where the £6,000 limit of liability will apply—e.g., carriage between London-Paris, since both the United Kingdom and France will then be parties to the Protocol. The third is the residual and diminishing amount of carriage still governed by the unamended Warsaw Convention where the £3,000 limit will apply 1837 —for example, London-Delhi, until such time as India also ratifies the Protocol, although the return journey London-Delhi-London will be governed by the Protocol. In practice, however, a great deal of this carriage will be governed by arrangements under which the major airlines have voluntarily agreed to a limit of £21,000 as an interim measure pending the further revision of the Convention.
It is a matter for regret that there will be these variations in the limits, but uniformity is not something that we can achieve by ourselves, because of the international aspects. Nevertheless, our proposals do, I believe, represent a valuable advance on the existing situation where both international and non-international carriage is subject to the same limit of £3,000; and, having regard to the interests of the ever-growing number of the public who travel by air, I am sure that noble Lords will wish to approve the Order.

§ LORD BALFOUR OF INCHRYE
My Lords, could I ask the Minister one question on this Order? I ask it as a layman not so well versed in law as are many noble and learned Lords. Under the amended Order raising the old Warsaw limit of £3,000 to £6,000, and under the new proposal for £21,000 for domestic services, is there any taking away from the citizen of his right to go to the courts and sue the operating company if he feels that there are grounds for alleging negligence on the part of the company or its servants?

§ LORD RHODES
My Lords, none whatever.

§ VISCOUNT DILHORNE
My Lords, I welcome What the Minister has said about the increase in the limit of liability in relation to domestic flights but I am sure he recognises that the disparity of limits, depending upon which route you fly and whether or not it is covered by the Warsaw Convention, is wholly anomalous and illogical. I should like to ask him whether Her Majesty's Government are pressing actively for that Convention to be revised with a view to 1838 getting some uniformity of limit more approaching that which applies to domestic users.

§ LORD RHODES
My Lords, I made special reference to that point towards the end of my speech when I said it is a matter for regret that there will be these variations in the limits. But uniformity is something we cannot achieve by ourselves. I can assure the noble and learned Viscount that we are doing all we can to speed this matter up.

§ LORD LINDGREN
My Lords, I listened to what was said by my noble friend, Lord Rhodes, with a great deal of attention. I gathered that he was referring to scheduled flights on recognised air lines, but I did not gather whether or not charter flights, and particularly the growing package deals of charter flights in association with holidays abroad, are covered by this Convention.

§ LORD RHODES
My Lords, that is another point, but so long as it is international in content I take it that it does.

§ LORD LINDGREN
My Lords, am I to gather that the normal passenger accepting a holiday package deal offered by a charter firm is covered by this Convention?

§ LORD RHODES
My Lords, I do not know, but I will let my noble friend know.