CARRIAGE BY AIR ACTS (APPLICATION OF PROVISIONS) (OVERSEAS TERRITORIES) ORDER 1967 (Hansard, 8 May 1967)

§ LORD SORENSEN
My Lords, I beg to move that the Carriage by Air Acts (Application of Provisions) (Overseas Territories) Order 1967, a copy of which was laid before the House on April 27, be approved. Noble Lords may wonder why I am sponsoring a draft Order dealing with Civil Aviation. The reason is that this draft Order applies to dependent territories. The provisions of the draft Order follow closely, allowance being made for necessary adaptations, the Carriage by Air Acts (Application of Provisions) Order 1967, which was approved by your Lordships in December last. So what is now proposed is to apply to the dependent territories the same provisions as has already been agreed should apply as part of the law of the United Kingdom.
1187 Three Conventions are relevant to the draft Order, the Warsaw Convention of 1929, the Warsaw Convention as amended by The Hague Protocol of 1955 (or, in other words, "the amended Convention") and the Guadalajara Convention. The Warsaw Convention of 1929 was ratified by the United Kingdom both on her own account and in respect of the then dependent territories. The Carriage by Air Act 1932 gave effect in the United Kingdom to this Convention, which limited the liability of the carrier to some £3,000 per passenger in respect of international carriage as defined in the Convention. The Carriage by Air (non-International Carriage) (United Kingdom) Order 1952, and its Colonial counterpart, the Carriage by Air (Non-international Carriage) (Colonies, Protectorates and Trust Territories) Order 1953, which were made under the provisions of that Act, apply the same limit of liability to domestic and other carriage not covered by the Convention. The former Order applies as part of the law of the United Kingdom, the latter as part of the law of those territories to which it applies.
The Hague Protocol of 1955 made a number of amendments to the Warsaw Convention, and in particular raised the limit of liability to some £6,000 per passenger in respect of international carriage. The United Kingdom has now notified the Government of Poland of its intention to ratify The Hague Protocol, both on its own account and on behalf of the dependent territories mentioned in the draft Order. New legislation is therefore required, not only for the United Kingdom but also for these dependent territories.
The Guadalajara Convention 1961 was given effect to in the United Kingdom by the Carriage by Air (Supplementary Provisions) Act 1962. We are concerned with this Convention because the draft Order applies its provisions. It does little more than define the expression "carrier" used in both the unamended and the amended Warsaw Convention. This Convention was ratified on behalf of the United Kingdom in 1964.
Section 1 of the Carriage by Air Act 1961 gives effect to the Warsaw Convention as amended by The Hague Protocol of 1955, thereby enabling the Protocol to 1188 be ratified by the United Kingdom, and an Order in Council has now been made, namely, the Carriage by Air (Convention) Order 1967, which certifies June 1 as the day on which the amended Convention will come into force as regards the United Kingdom. With effect from that date the Carriage by Air Act 1932, which as I have said gives effect to the Warsaw Convention of 1929, will be repealed. When this happens the Carriage by Air (Non-International Carriage) (United Kingdom) Order 1952 will be revoked, and it will he replaced on June 1 by the Carriage by Air Acts (Application of Provisions) Order 1967, already referred to. This latter Order applies the principles of the amended Convention with modifications to carriage by air not governed by that Convention. At the same time it is proposed to revoke the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order 1953 in so far as it applies as part of the law of the territories to which the draft Order applies.
The draft Order now before your Lordships, which is proposed to be made under Sections 9 and 10 of the Act of 1961 and Section 5 of the Carriage by Air (Supplementary Provisions) Act 1962, is to replace the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order 1953. As I have said, the draft Order follows as closely as possible, allowance being made for necessary adaptations for needs of dependent territories, the Carriage by Air Acts (Application of Provisions) Order 1967, but it applies to the dependent territories mentioned therein; that is to say, the territories on behalf of which the United Kingdom has ratified The Hague Protocol of 1955.
The main provisions of the draft Order are as follows. First, it applies to domestic and other carriage which is not governed by either the unamended or amended Warsaw Convention, the principles of the amended Convention (including the Guadalajara Convention, 1961), with certain adaptations and modifications. Among these are 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 interest is the raising of the carrier's limit of liability to some 1189 £21,000 per passenger which, as I have said, under the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order, 1953, was only £3,000.
Secondly, it applies the principles of the amended Convention to the carriage of airmail, with similar adaptations and modifications. Thirdly, as a transitional provision it applies those principles to the diminishing amount of carriage which will continue to be governed by the unamended Warsaw Convention, with adaptations and modifications which conform to that Convention to which the United Kingdom remains a party and which limits the carriers' liability to some £3,000. Fourthly, it applies the Warsaw/Hague system to gratuitous carriage by the Crown; carriage by the Crown for reward already being governed by that system. Fifthly, it gives the Governor of a dependent territory power to exempt, in relation to that territory, any class of carriage from the requirements imposed by the Order—although this power is likely to be rarely used. Sixthly, it applies to the dependent territories mentioned in the Order, so that the provisions of the Order become part of the law of those territories.
Finally, the draft Order 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 limit of liability. The carrier is not liable if he proves he took due care, but his liability will be limited in the absence of wilful misconduct, unless the carrier has contracted for a higher figure.
This Order will apply only to those territories mentioned in Schedule 5 to the draft Order; that is to say, the territories on whose behalf the amended Convention has been ratified. In respect of the few territories for whom it would not now be appropriate for us to legislate we have suggested to them that they may wish to consider bringing in their own legislation or, if they wish, having this Order applied to them. We feel that this is a matter which, in the present state of their constitutional development, can best be left to them. We have, of course, consulted with all the territories, whether mentioned in Schedule 5 or not, about what is proposed.
1190 I should perhaps say that it is proposed that another Order in Council, the Carriage by Air (Overseas Territories) Order 1967 will be made under Section 9 of the Act of 1961, and this Order will also come into operation on June 1. This Order is not required by the terms of the Act of 1961 to be laid before Parliament. This is an international carriage Order and its main purpose is to extend to the dependent territories mentioned therein the provisions of the amended Convention: the £6,000 limit of liability will apply. If, therefore, The Hague Protocol and the two Overseas Territories Orders come into effect on June 1 there will be three classes of carriage governed by their provisions, of which notice can be taken in the Courts of the territories mentioned in the Orders. They are: (i) carriage governed by the Warsaw Convention as amended by The Hague Protocol, where the £6,000 limit of liability will apply—for example, carriage between Gibraltar/Paris, since both the United Kingdom and France will be parties to the Protocol; (ii) the residual and diminishing amount of carriage still governed by the unamended Warsaw Convention where the £3,000 limit will apply—for example, Hong Kong/Delhi, until such time as India also ratifies the Protocol; and (iii) carriage governed by neither the amended nor the unamended Convention where the £21,000 limit will apply—for example, Suva/Nandi (both of which are in Fiji), London/Gibraltar or Bermuda/Bahamas non-stop and Gibraltar/Istanbul, since Turkey is not yet a party to either the Protocol or the unamended Warsaw Convention. The carriage with the limit of £6,000 mentioned above will be governed by the Carriage by Air (Overseas Territories) Order, 1967; the carriage with the limits of £3,000 and £21,000 by the draft Order.
If the draft Order is approved, it will come into operation on the same date as that proposed for the coming into operation of the Carriage by Air Acts (Application of Provisions) Order 1967; that is to say, on June 1, 1967, the date of the coming into force of The Hague Protocol in respect of the United Kingdom. I beg to move.

VISCOUNT COLVILLE OF CULROSS
My Lords, if in the British Antactic territories, the British Indian Ocean Territories and the Central and Southern Line Islands, Lord Sorensen's statement is received with the acclaim it has had here this afternoon I am sure that a great work will have been done. I wish to say nothing on the merits of this Order, except to welcome it from this side of the House. In view of the long debate that we shall have later to-day I will not elaborate on this but will merely ask one question on the transitional provisions.
The noble Lord will know that under Article V and Schedule 4 to this Order there is the application of the unamended Warsaw Convention 1929 to that amount of carriage which is still governed by it. In the Carriage by Air Acts (Application of Provisions) Order 1967, which is the domestic one in this country, the same matter was covered adequately by Schedule 2. In the 1967 Order, which applied to this country, the whole thing was set out with great clarity, first the amended Convention, and, secondly, the unamended Convention, so that the two could be compared, but this is not so with the form that has been adopted in the Order now before the House, and I think it would have been difficult, if not impossible, to make it more obscure than it is in the Order.
What is said is this—and this is meant to be a reference to the unamended Warsaw Convention of 1929. Schedule 2 starts: Part I.Application of the amended Convention". If that is intended to lead people to believe, where they have not access to textbooks and reference books as noble Lords have in this House, that the Schedule is dealing with the unamended Convention I can think of few words which are more likely to lead to confused thinking. I imagine that this part of the Order will rarely be read—indeed I trust that it will almost never be read. I must object to the drafting of this Order. The noble Lord said that such adaptations as are necessary have been made. I would suggest to the noble Lord that this is a wholly unnecessary alteration; it is a thoroughly bad piece of drafting which has muddled the issue, and I hope that 1192 never again when we deal with a matter on this basis will the transitional proceedings be dealt with in quite so obscure a fashion.

§ LORD SORENSEN
My Lords, I want to thank the noble Lord for his few kind words. I will see that they are passed on to the right quarter. I will endeavour to anticipate any restlessness on the part of noble Lords by saying that I do not propose to deal in detail with the noble Viscount's most interesting point, except to say that those who drafted this Order were well aware of the complicated nature of this Order and other Orders, and did their best, for the purposes of clarification (strange as it may seem) and also of abbreviation, to embody in this Order what they thought was the best approach to the whole matter. I can assure the noble Viscount that I fully appreciate his concern in the matter. The Order seems to be highly complicated and to some extent obscure, but I want to assure him that this fact was borne in mind by those who prepared my reply and the Order itself and, according to their judgment, after extensive reflection they thought this was the best way of dealing with it.