HL Deb 16 February 1971 vol 315 cc530-6

5.27 p.m.

LORD DENHAM

My Lords, on behalf of my noble friend Lord Drumalbyn, I beg to move that the Hovercraft (Civil Liability) Order 1971, a draft of which was laid before this House on January 19, be approved. The purpose of the Order 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. The Order is made under Section 1(1)(h) and 1(1)(i) of the Hovercraft Act 1968. This Act is primarily an enabling Act. Although it defines hovercraft and provides for their treatment as vehicles in their own right, it has little practical effect until Orders in Council are made under it. The Hovercraft (Civil Liability) Order is the first such Order to be presented to this House.

Section 1(1)(i) of the Hovercraft Act lays down that the Order should be drafted on the lines of the aviation system for passengers and baggage, the marine system as regards cargo, and the marine system, too, as regards third party liability; that is to say, injury or damage to persons and property not in the hovercraft.

The basis of the aviation principles of liability for passengers and their baggage, which, with modifications, the Order applies to hovercraft, is the Warsaw Convention of 1929 as amended by The Hague Protocol of 1955 which applies to international carriage as defined therein. Under the Carriage by Air Act 1961, the United Kingdom has extended this system to non-international carriage, but with a higher limit. The limits of liability under the aviation system can vary from £3,500 for a one-way journey from the United Kingdom to a country not party to the amending Protocol—for example, India—to £24,000 for a journey touching upon the United States and for non-international carriage such as a domestic journey. In other words, the limit varies with the journey involved. 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. The carrier is not permitted to contract out of liability or for lower limits. By contrast, under the marine system, shipowners are free to contract out of liability to passengers and baggage. Under the Road Traffic Acts there is a different system again, and liability is unlimited in respect of passengers carried for reward, although the carrier cannot contract out of liability or for lower limits.

The limit proposed in the draft Order is £12,000 per passenger. This limit, which was decided upon after consultation with the industry, is designed to strike a fair balance between the interests of the public and the interests of the hovercraft operators, who for the most part are in competition with ships. 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 himself.

So far as cargo is concerned, 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. Motor vehicles, whether accompanied or not, are treated in the Order as cargo. The foundation of the marine system is the issue of a bill of lading. If it is not issued, then the limits do not apply. If a bill of lading is issued, then there are various circumstances, defined in the 1924 Act, in which the shipowner can escape liability—for example, in the case of loss due to fire on board.

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 injuries to passengers or loss of or damage to their baggage on board the hovercraft itself and 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, which includes a 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 limits existing for ships under the Merchant Shipping Acts 1894 and 1958 and the method of calculating the liability on the basis of tonnage are not suitable for hovercraft, and it is for this reason that the proposed limit is based on the maximum weight of the hovercraft. The limitation is, however, derived from a comparison of the values of ships and hovercraft.

In the draft Liability Order, the passengers, baggage and cargo provisions apply broadly from hoverport to hoverport. Thus, in the case of an amphibious hovercraft the journey between the sea and the hoverport is covered. Equally, it would apply to a purely land journey, although if this were a journey on a road—which is perhaps unlikely in view of the difficulty a hovercraft could have in complying with the relevant vehicle construction regulations—certain provisions of the Road Traffic Acts would be overriding. 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 extends to hovercraft Sections 5(1), 6 and 30 of the Crown Proceedings Act 1947, which provide for limitation of liability in respect of H.M. Ships. I hope that your Lordships will approve this Order.

Moved, That the Draft Hovercraft (Civil Liability) Order 1971, laid before the House on 19th January, be approved.—(Lord Denham)

LORD BESWICK

My Lords, I am sure that we should all wish to congratulate the noble Lord, Lord Denham, on setting forth so clearly the provisions of this Order. It has taken quite a time to produce it. I think that I promised it way back in 1948, and I am glad that it has been found possible to produce it.

THE EARL OF KINNOULL

In 1948?

LORD BESWICK

I am sorry, I was referring to the Hovercraft Act of 1968. But, of course, it goes back beyond 1968. We had to discuss such questions as whether a hovercraft was a ship or an aircraft. It was necessary to get some clarification so far as liability was concerned and, as I say, I am glad that the Order is now before us.

I hope that the noble Lord can assure the House that all the interests concerned approve of the provisions of the Order. I have only one other question. Technology marches on. We now have before us the possibility of a tracked hovercraft. To what extent would these provisions apply to hovercraft that are tracked?— or do they not apply at all? Is it laid down that they do not apply? And, if not, is any research being carried out as to the Order we should need in due course to cover the operations of that form of transport? In the meantime, I am glad that we have this Order and I hope that it will facilitate the greater development of the hovercraft.

THE EARI OF KINNOULL

My Lords, I should like briefly to welcome this Order. I must say that I was a little astonished, knowing the noble Lord, Lord Beswick, to hear him refer to the Hovercraft Act 1948, when in fact the hovercraft was not introduced until the mid-50s. I should also like to congratulate my noble friend Lord Denham on introducing an Order that encourages this industry. We know that Seaspeed and Hovertravel have been operating now for a number of years around the coasts of Britain. I should like to ask my noble friend, as he is now introducing these safeguards, what has been the position of passengers up to this day, because so many passengers have been carried already by hovercraft. I think that it would be of general interest if he could advise us on that point.

I should also like to ask my noble friend a question about hoverports. I am sure that those who have used hovercraft as a means of transport will agree that in many cases hoverports are not designed in a very sophisticated way. Indeed, when one gets on to a hovercraft, one finds that the propellor is whirling close to many of the passengers, and I should like to know how much thought has been given by the Government to the question of safety.

LORD DAVIES OF LEEK

My Lords, having introduced a measure for hovercraft safety in another place, I have an interest in this Order. While endorsing the safety provisions, there is one question which I should like to put about the limit of £12000. In a way this is a fair limit so far as the hovercraft companies and the passengers are concerned. About four years ago, it was estimated that by the year 1980 the average wage in Britain would be somewhere in the neighbourhood of £30 to £35 a head. My simple point is this. Are we doing right (to use a colloquial term) in spiking down a sum of £12,000? Cannot we have some other reference, say, to 20 years' salary of a person who was killed? After all, in some cases the limited amount of £12,000 for the main breadwinner of a family may mean that the entire family future is put in jeopardy. I do not wish to delay the House, but I think it may be worth looking at whether it would be at all possible to have a little latitude on the limit of £12,000 and at the same time be fair to the hovercraft companies, provided they introduce the safeguards needed.

LORD DENHAM

My Lords, I am most grateful to all noble Lords who have spoken on this Order and for the welcome they have given to it. As your Lordships will have seen from my rather lengthy introduction, this is a matter of great complexity, as indeed are some of the questions asked by noble Lords. I will try to answer what I can, but what I cannot answer I will write about to the noble Lords concerned.

The noble Lord, Lord Beswick, asked whether all interests approved the Order. All interests were certainly consulted, and the Order as it comes here is thought to be the fairest way of taking into consideration the wishes of all concerned. The noble Lord also asked about tracked hovercraft, which are being developed. I am advised that the provision might have to be amended in due course to take account of this and also any other technological developments that take place in the hovercraft field.

My noble friend Lord Kinnoull asked about the safety aspects of hovercraft. I think the safety aspects will come more under the next Order, which is in a fairly advanced state of preparation and will be laid before very long.

The noble Lord, Lord Davies of Leek, asked whether we felt that the £12,000 limit was enough in view of present and possible future circumstances of passengers. The £12,000 was arrived at after a great deal of consideration as the fairest possible amount to fix taking into account the interests both of the companies and of the passengers. It will be well known that the liability is kept at this amount for an individual passenger. It will be open to any passenger to insure for any sum that he may feel he wants guaranteed beyond that. A limit of a multiple of the passenger's salary would not work. If you take the case of a passenger who had no income, in that case the liability would be nil. Further, the limit would be unfair as being higher for the high earner than for the low earner. These points have been considered, and the limit of £12,000 is the fairest that can be achieved.

LORD ARWYN

My Lords, in view of the fact that the development of a hydrofoil craft is pending and may in the next five years prove to be more important and have greater efficiency than the present hovercraft, would the next Order to which the noble Lord referred include any risks such as those he has outlined on a compensation basis?

LORD DENHAM

My Lords, I am afraid I cannot give the noble Lord an answer at the moment, but I will certainly write to him as soon as I can and do so.

On Question, Motion agreed to.