What is CARRIAGE BY AIR ACT 1974?

*CARRIAGE BY AIR ACT 1974 is Malaysia Act, cited as Act 148 1974, currently marked in force and first recorded in 1974.

Is CARRIAGE BY AIR ACT 1974 still in force?

Yes — CARRIAGE BY AIR ACT 1974 is currently in force.

When did CARRIAGE BY AIR ACT 1974 take effect?

CARRIAGE BY AIR ACT 1974 was first recorded in 1974.

How many sections does CARRIAGE BY AIR ACT 1974 have?

CARRIAGE BY AIR ACT 1974 contains 105 sections.

Where can I read the official version of CARRIAGE BY AIR ACT 1974?

The official text of CARRIAGE BY AIR ACT 1974 is published at lom.agc.gov.my.

CARRIAGE BY AIR ACT 1974 (No. 148)

Section 1

(2)

Except as provided in subsection (3), this Act shall come into force on such day as the Yang di-Pertuan Agong may by order certify to be the day on which the Convention comes into force as regards

Malaysia.

(3)

Section 11 shall come into force on such day as the Yang di-Pertuan Agong may by order certify to be the day on which the

Supplementary Convention comes into force as regards Malaysia.

(4)

Section 11A shall come into force on such day as the Yang di-Pertuan Agong may by order certify to be the day on which the

Amended Convention and the Montreal Convention come into force as regards Malaysia.

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Interpretation

Section 2

In this Act, unless the context otherwise requires —

“Amended Convention” means the Convention as further amended by the Montreal Protocol No. 4 of 1975 as set out in the Fifth

Schedule;

“Carriage by Air Conventions” means the Convention, the

Supplementary Convention, the Amended Convention and the

Montreal Convention;

“Convention” means the Convention for the unification of certain rules relating to international carriage by air known as “the Warsaw

Convention as amended at The Hague 1955” as set out in the First

Schedule;

“court” includes (in an arbitration allowed by the Convention) an arbitrator;

“Minister” means the Minister responsible for civil aviation;

“Montreal Convention” means the Convention, signed at Montreal on the 28 May 1999, for the unification of certain rules relating to international carriage by air, as set out in the Sixth Schedule;

“Montreal Protocol No. 4 of 1975” means the protocol, signed at

Montreal on 25 September 1975, to amend the Warsaw Convention as amended at the Hague;

“State Party” means, a High Contracting Party in relation to the

Convention and the Amended Convention, or a State Party in relation to the Montreal Convention, as the case may be;

“Supplementary

Convention”

means the

Convention, supplementary to the Warsaw Convention, signed at Guadalajara on the 18 September 1961, for the unification of certain rules relating to

Carriage by Air 7

international carriage by air performed by a person other than the contracting carrier, as set out in the Second Schedule.

Section 3

Convention to have force of law

(2)

This section shall not apply so as to affect rights or liabilities arising out of an occurrence before the coming into force of this section.

Designation of State Parties

Section 4

(1A)

The Yang di-Pertuan Agong may by order from time to time certify any revision of the limits of liability established pursuant to

Article 24 of the Montreal Convention.

(2)

Paragraph (2) of Article 40A of the Convention and the

Amended Convention shall not be read as extending references to the

Convention or the Amended Convention to the territory of a State

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Party (except such as are references to the territory of any State, whether a State Party or not) to include any territory in respect of which that State Party is not a party.

(3)

An order made under this section shall, except so far as it has been superseded by a subsequent order, be conclusive evidence of the matters so certified.

(4)

An order under this section may contain such transitional and other consequential provisions as appear to the Yang di-Pertuan

Agong to be expedient.

Fatal accidents

Section 5

Any liability imposed by Article 17 of the Convention, Article 17

of the Amended Convention or paragraph 1 of Article 17 of the

Montreal Convention on a carrier in respect of the death of a passenger shall be in substitution for any liability of the carrier in respect of the death of that passenger either under any written law or any rule of law in force in Malaysia relating to fatal accidents due to a wrongful act, neglect or default and the provisions set out in the

Third Schedule shall have effect with respect to the person by and for whose benefit the liability so imposed is enforceable and with respect to the manner in which it may be enforced.

Section 6

Limitations of liability

(a)

those limitations apply where proceedings are brought by a tortfeasor to obtain a contribution from another torfeasor; and

Carriage by Air 9

(b)

the limitation for each passenger in paragraph (1) of

Article 22 of the Convention, paragraph (1) of Article 22

of the Amended Convention and Article 21 and paragraph 1 of Article 22 of the Montreal Convention applies to the aggregate liability of the carrier in all proceedings which may be brought against the carrier under the appropriate law in force in the relevant part of

Malaysia, together with any proceedings brought against the carrier outside Malaysia.

(2)

A court before which proceedings are brought to enforce a liability which is limited by Article 22 of the Convention, Article 22

of the Amended Convention or Articles 21, 22 and 44 of the

Montreal Convention may at any stage of the proceedings make any such order as appears to the court to be just and equitable in view of the provisions of that Article and of any other proceedings which have been, or are likely to be, commenced in Malaysia or elsewhere to enforce the liability in whole or in part.

(3)

Without prejudice to subsection (2), a court before which proceedings are brought to enforce a liability which is limited by

Article 22 of the Convention, Article 22 of the Amended Convention or Articles 21, 22 and 44 of the Montreal Convention shall, where the liability is, or may be, partly enforceable in other proceedings in

Malaysia or elsewhere, have jurisdiction to award an amount less than the court would have awarded if the limitation applied solely to the proceedings before the court, or to make any part of its award conditional on the result of any other proceedings.

(4)

The Minister may, from time to time, by order published in the Gazette specify the respective amounts which for the purposes of

Article 22 of the Convention, and, in particular of paragraph (5) of that Article, are to be taken as equivalent to the sums expressed in francs which are mentioned in that Article.

(5)

References in this section to Article 22 of the Convention or the Amended Convention include, subject to any necessary

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modifications, references to that Article as applied by Article 25A of the Convention or the Amended Convention.

(6)

In paragraphs (1)(a) and (b) and in subsections (2) and (3)

references to Article 22 of the Convention or the Amended

Convention shall include, subject to any necessary modifications, references to Article VI of the Supplementary Convention.

Time for bringing proceedings

Section 7

(2)

Article 29 of the Convention, Article 29 of the Amended

Convention and Article 35 of the Montreal Convention shall not be read as applying to any proceedings for contribution between tortfeasors, but no action shall be brought by a tortfeasor to obtain a contribution from a carrier in respect of a tort to which

Article 29 of the Amended Convention and Article 35 of the

Montreal Convention applies after the expiration of two years from the time when judgment is obtained against the person seeking to obtain the contribution.

(3)

Subsections (1) and (2) and Article 29 of the Convention,

Article 29 of the Amended Convention and Article 35 of the

Montreal Convention shall have effect as if references in those provisions to an action included references to an arbitration; and the provisions of the appropriate law in force in the relevant part of Malaysia which determine the time at which an arbitration is deemed to be commenced shall apply for the purposes of this subsection.

Carriage by Air 11

(4)

In this section references to a carrier include references to an actual carrier as defined in paragraph (c) of Article I of the

Supplementary Convention as well as to a contracting carrier as defined in paragraph (b) of that Article and to an actual carrier as defined in Article 39 of the Montreal Convention.

Contributory negligence

Section 8

It is hereby declared that for the purposes of Article 21 of the

Convention, Article 21 of the Amended Convention and Article 20 of the Montreal Convention, section 12 of the Civil Law Act 1956

[Act 67] is a provision of the law of Malaysia under which a court may exonerate the carrier wholly or partly from his liability.

Section 9

Power to exclude aircraft in use for military purposes

(2)

The Carriage By Air Conventions shall not apply to the carriage of persons, cargo and baggage for the military authorities of a State to which this section applies in aircraft registered in that State if the whole capacity of the aircraft has been reserved by or on behalf of those authorities.

Actions against State Parties

Section 10

(1A)

This section shall not apply to a State Party who has availed himself of the Additional Protocol at the end of the Convention or the

Additional Protocol at the end of the Amended Convention in relation to Article 28 of the Convention or Article 28 of the Amended

Convention, or of Article 57 of the Montreal Convention in relation to Articles 33 and 46 of the Montreal Convention.

(2)

The reference to Article 28 of the Convention and Article 28

of the Amended Convention in this section includes a reference to

Article VIII of the Supplementary Convention.

Supplementary Convention to have force of law

Section 11

(2)

This section shall not apply so as to affect rights or liabilities arising out of an occurrence before the coming into force of this section.

Amended Convention and Montreal Convention to have force of law

Section 11A

(2)

This section shall not apply so as to affect rights or liabilities arising out of an occurrence before the coming into force of this section.

Application to carriage by air not governed by Carriage by Air

Conventions

Section 12

(2)

Any order made under this section may contain such transitional and other consequential provisions as appear to the Yang di-Pertuan Agong to be expedient.

(3)

Any order made under subsection (1) or (2) shall be laid before both Houses of Parliament as soon as may be after it is made.

Act to bind Federal and State Governments

Section 13

This Act shall bind the Governments of Malaysia and every State thereof.

Section 14

Repeal

(2)

The Carriage By Air Act 1932 [22 & 23 Geo. 5c. 36], the

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Carriage By Air Act 1961 [9 & 10 Eliz. 2c. 27], the Carriage By Air

(Supplementary Provisions) Act 1962 [10 & 11 Eliz. 2c. 43], all of the United Kingdom, and all orders and other subsidiary legislation made under those Acts shall cease to have effect in any part of

Malaysia, and such cessation shall be deemed to be a repeal for the purposes of the Interpretation Acts 1948 and 1967 [Act 388].

FIRST SCHEDULE

[Section 2]

THE WARSAW CONVENTION AS AMENDED AT THE HAGUE 1955

CONVENTION

FOR THE UNIFICATION OF CERTAIN RULES RELATING TO

INTERNATIONAL CARRIAGE BY AIR

SCOPE—DEFINITIONS

Article 1

(1)

This Convention applies to all international carriage of persons, baggage, or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.

(2)

For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two High

Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that

State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this

Convention.

Carriage by Air 15

(3)

Carriage to be performed by several successive air carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State.

Article 2

(1)

This Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in

Article 1.

(2)

This Convention shall not apply to carriage of mail and postal packages.

DOCUMENTS OF CARRIAGE

Section 1—PASSENGER TICKET

Article 3

(1)

In respect of the carriage of passengers a ticket shall be delivered containing:

(a)

an indication of the places of departure and destination;

(b)

if the places of departure and destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;

(c)

a notice to the effect that, if the passenger’s journey involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the

Convention governs and in most cases limits the liability of carriers for death or personal injury and in respect of loss of or damage to baggage.

(2)

The passenger ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage. The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage which shall, none the less, be subject to the rules of this Convention.

Nevertheless, if, with the consent of the carrier, the passenger embarks without a passenger ticket having been delivered, or if the ticket does not include the notice

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required by subparagraph (1)(c) of this Article, the carrier shall not be entitled to avail himself of the provisions of Article 22.

Section 2—BAGGAGE CHECK

Article 4

(1)

In respect of the carriage of registered baggage, a baggage check shall be delivered, which, unless combined with or incorporated in a passenger ticket which complies with the provisions of Article 3, paragraph (1), shall contain:

(a)

an indication of the places of departure and destination;

(b)

if the places of departure and destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;

(c)

a notice to the effect that, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the

Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to baggage.

(2)

The baggage check shall constitute prima facie evidence of the registration of the baggage and of the conditions of the contract of carriage. The absence, irregularity or loss of the baggage check does not affect the existence or the validity of the contract of carriage which shall, none the less, be subject to the rules of this

Convention. Nevertheless, if the carrier takes charge of the baggage without a baggage check having been delivered or if the baggage check (unless combined with or incorporated in the passenger ticket which complies with Article 3, subparagraph (1)(c)) does not include the notice required by subparagraph (1)(c) of this Article he shall not be entitled to avail himself of Article 22, paragraph (2).

Section 3—AIR WAYBILL

Article 5

(1)

Every carrier of cargo has the right to require the consignor to make out and hand over to him a document called an “air waybill”; every consignor has the right to require the carrier to accept this document.

Carriage by Air 17

(2)

The absence, irregularity or loss of this document does not affect the existence or the validity of the contract of carriage which shall, subject to Article 9, be none the less governed by the rules of this Convention.

Article 6

(1)

The air waybill shall be made out by the consignor in three original parts and be handed over with the cargo.

(2)

The first part shall be marked “for the carrier”, and shall be signed by the consignor. The second part shall be marked “for the consignee”; it shall be signed by the consignor and by the carrier and shall accompany the cargo. The third part shall be signed by the carrier and handed by him to the consignor after the cargo has been accepted.

(3)

The carrier shall sign prior to the loading of the cargo on board the aircraft.

(4)

The signature of the carrier may be stamped; that of the consignor may be printed or stamped.

(3)

If, at the request of the consignor, the carrier makes out the air waybill, he shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor.

Article 7

The carrier of cargo has the right to require the consignor to make out separate waybills when there is more than one package.

Article 8

The air waybill shall contain:

(a)

an indication of the places of departure and destination;

(b)

if the places of departure and destination are within the territory of a single

High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;

(c)

a notice to the consignor to the effect that, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the

Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to cargo.

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Article 9

If, with the consent of the carrier, cargo is loaded on board the aircraft without an air waybill having been made out, or if the air waybill does not include the notice required by Article 8, paragraph (c), the carrier shall not be entitled to avail himself of Article 22, paragraph (2).

Article 10

(1)

The consignor is responsible for the correctness of the particulars and statements relating to the cargo which he inserts in the air waybill.

(2)

The consignor shall indemnify the carrier against all damage suffered by him, or by any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements furnished by the consignor.

Article 11

(1)

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.

(2)

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 as they both have been and are stated in the air waybill to have been, checked by him in the presence of the consignor, or relate to the apparent condition of the cargo.

Article 12

(1)

Subject to his liability to carry out all his obligations under the contract of carriage, the consignor has the right to dispose of the cargo by withdrawing it at the aerodrome of departure or destination, or by stopping it in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee named in the air waybill, or by requiring it to be returned to the aerodrome of departure. He must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and he must repay any expenses occasioned by the exercise of this right.

(2)

If it is impossible to carry out the orders of the consignor the carrier must so inform him forthwith.

(3)

If the carrier obeys the orders of the consignor for the disposition of the cargo without requiring the production of the part of the air waybill delivered to the

Carriage by Air 19

latter, he will be liable, without prejudice to his right of recovery from the consignor, for any damage which may be caused thereby to any person who is lawfully in possession of that part of the air waybill.

(4)

The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Article 13. Nevertheless, if the consignee declines to accept the waybill or the cargo, or if he cannot be communicated with, the consignor resumes his right of disposition.

Article 13

(1)

Except in the circumstances set out in the preceding Article, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to hand over to him the air waybill and to deliver the cargo to him, on payment of the charges due and on complying with the conditions of carriage set out in the air waybill.

(2)

Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives.

(3)

If the carrier admits the loss of the cargo, or if the cargo has not arrived at the expiration of seven days after the date on which it ought to have arrived, the consignee is entitled to put into force against the carrier the rights which flow from the contract of carriage.

Article 14

The consignor and the consignee can respectively enforce all the rights given them by Articles 12 and 13, each in his own name, whether he is acting in his own interest or in the interest of another, provided that he carries out the obligations imposed by the contract.

Article 15

(1)

Articles 12, 13 and 14 do not affect either the relations of the consignor or the consignee with each other or the mutual relations of third parties whose rights are derived either from the consignor or from the consignee.

(2)

Articles 12, 13 and 14 can only be varied by express provision in the air waybill.

(3)

Nothing in this Convention prevents the issue of a negotiable air waybill.

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Article 16

(1)

The consignor must furnish such information and attach to the air waybill such documents as are necessary to meet the formalities of customs, octroi or police before the cargo can be delivered to the consignee. The consignor is liable to the carrier for any damage occasioned by the absence, insufficiency or irregularity of any such information or documents, unless the damage is due to the fault of the carrier or his servants or agents.

(2)

The carrier is under no obligation to enquire into the correctness or sufficiency of such information or documents.

LIABILITY OF THE CARRIER

Article 17

The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Article 18

(1)

The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air.

(2)

The carriage by air within the meaning of the preceding paragraph comprises the period during which the baggage or cargo is in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever.

(3)

The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air.

Article 19

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.

Carriage by Air 21

Article 20

The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.

Article 21

If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability.

Article 22

(1)

In the carriage of persons the liability of the carrier for each passenger is limited to the sum of two hundred and fifty thousand francs. Where, in accordance with the law of the court seised of the case, damages may be awarded in the form of periodical payments the equivalent capital value of the said payments shall not exceed two hundred and fifty thousand francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.

(2)

(a)

In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the passenger’s or consignor’s actual interest in delivery at destination.

(b)

In the case of loss, damage or delay of part of the registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package shall also be taken into consideration in determining the limit of liability.

(3)

As regards objects of which the passenger takes charge himself the liability of the carrier is limited to five thousand francs per passenger.

(4)

The limits prescribed in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff. The foregoing provision shall not apply if the amount of the damages awarded,

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excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later.

(5)

The sums mentioned in francs in this Article shall be deemed to refer to a currency unit consisting of sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. These sums may be converted into national currencies in round figures. Conversion of the sums into national currencies other than gold shall, in case of judicial proceedings, be made according to the gold value of such currencies at the date of the judgment.

Article 23

(1)

Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract which shall remain subject to the provisions of this Convention.

(2)

Paragraph (1) of this Article shall not apply to provisions governing loss or damage resulting from the inherent defect, quality or vice of the cargo carried.

Article 24

(1)

In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this

Convention.

(2)

In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.

Article 25

The limits of liability specified in Article 22 shall not apply, if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.

Article 25A

(1)

If an action is brought against a servant or agent of the carrier arising out of damage to which this Convention relates, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the limits of liability which that carrier himself is entitled to invoke under Article 22.

Carriage by Air 23

(2)

The aggregate of the amounts recoverable from the carrier, his servants and agents, in that case, shall not exceed the said limits.

(3)

The provisions of paragraphs (1) and (2) of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.

Article 26

(1)

Receipt by the person entitled to delivery of baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage.

(2)

In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his disposal.

(3)

Every complaint must be made in writing upon the document of carriage or by separate notice in writing despatched within the times aforesaid.

(4)

Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part.

Article 27

In the case of the death of the person liable, an action for damages lies in accordance with the terms of this Convention against those legally representing his estate.

Article 28

(1)

An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the court having jurisdiction at the place of destination.

(2)

Questions of procedure shall be governed by the law of the court seised of the case.

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Article 29

(1)

The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

(2)

The method of calculating the period of limitation shall be determined by the law of the court seised of the case.

Article 30

(1)

In the case of carriage to be performed by various successive carriers and falling within the definition set out in the third paragraph of Article 1, each carrier who accepts passengers, baggage or cargo is subjected to the rules set out in this

Convention, and is deemed to be one of the contracting parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under his supervision.

(2)

In the case of carriage of this nature, the passenger or his representative can take action only against the carrier who performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.

(3)

As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier who performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.

PROVISIONS RELATING TO COMBINED CARRIAGE

Article 31

(1)

In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Convention apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1.

(2)

Nothing in this Convention shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this Convention are observed as regards the carriage by air.

Carriage by Air 25

GENERAL AND FINAL PROVISIONS

Article 32

Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Convention, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless for the carriage of cargo arbitration clauses are allowed, subject to this Convention, if the arbitration is to take place within one of the jurisdictions referred to in the first paragraph of Article 28.

Article 33

Nothing contained in this Convention shall prevent the carrier either from refusing to enter into any contract of carriage, or from making regulations which do not conflict with the provisions of this Convention.

Article 34

Articles 3 to 9 inclusive relating to documents of carriage shall not apply in the case of carriage performed in extraordinary circumstances outside the normal scope of an air carrier’s business.

Article 35

The expression “days” when used in this Convention means current days not working days.

Article 40A

Section 1

The acts and omissions of the actual carrier and of his servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the contracting carrier.

Section 2

The acts and omissions of the contracting carrier and of his servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the actual carrier.

Nevertheless, no such act or omission shall subject the actual carrier to liability exceeding the limits specified in Article 22 of the Warsaw Convention. Any special agreement under which the contracting carrier assumes obligations not imposed by the Warsaw Convention or any waiver of rights conferred by that Convention or any special declaration of interest in delivery at destination contemplated in Article 22 of the said Convention, shall not affect the actual carrier unless agreed to by him.

Article IV

Any complaint to be made or order to be given under the Warsaw Convention to the carrier shall have the same effect whether addressed to the contracting carrier or to the actual carrier. Nevertheless, orders referred to in Article 12 of the Warsaw

Convention shall only be effective if addressed to the contracting carrier.

Article V

In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of the contracting carrier shall, if he proves that he acted within the scope of his employment, be entitled to avail himself of the limits of liability which are applicable under this Convention to the carrier whose servant or agent he is unless it is proved that he acted in a manner which, under the Warsaw Convention, prevents the limits of liability from being invoked.

Article VI

In relation to the carriage performed by the actual carrier, the aggregate of the

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amounts recoverable from that carrier and the contracting carrier, and from their servants and agents acting within the scope of their employment, shall not exceed the highest amount which could be awarded against either the contracting carrier or the actual carrier under this Convention, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to him.

Article VII

In relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately. If the action is brought against only one of those carriers, that carrier shall have the right to require the other carrier to be joined in the proceedings, the procedure and effects being governed by the law of the court seised of the case.

Article VIII

Any action for damages contemplated in Article VII of this Convention must be brought, at the option of the plaintiff, either before a court in which an action may be brought against the contracting carrier, as provided in Article 28 of the Warsaw

Convention, or before the court having jurisdiction at the place where the actual carrier is ordinarily resident or has his principal place of business.

Article IX

Section 1

Any contractual provision tending to relieve the contracting carrier or the actual carrier of liability under this Convention or to fix a lower limit than that which is applicable according to this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole agreement, which shall remain subject to the provisions of this Convention.

Section 2

In respect of the carriage performed by the actual carrier, the preceding paragraph shall not apply to contractual provisions governing loss or damage resulting from the inherent defect, quality or vice of the cargo carried.

Section 3

Any clause contained in an agreement for carriage and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Convention, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless, for the carriage of cargo arbitration clauses are allowed, subject to this Convention, if the arbitration is to take place in one of the jurisdictions referred to in Article VIII.

Article X

Except as provided in Article VII, nothing in this Convention shall affect the rights and obligations of the two carriers between themselves.

Carriage by Air 29

(Articles XI to XVIII and the concluding words of the Convention are not reproduced. They deal with the coming into force of the Convention and language of the text.)

THIRD SCHEDULE

[Section 5]

PROVISIONS AS TO LIABILITY OF CARRIER IN THE

EVENT OF THE DEATH OF A PASSENGER

Section 1

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.

In this paragraph the expression “member of a family” means wife or husband, parent, step-parent, grandparent, brother, sister, half-brother, half-sister, child, stepchild, grandchild:

Provided that, in deducing any such relationship as aforesaid, any illegitimate person and any adopted person shall be treated as being, or as having been, the legitimate child of his mother and reputed father, or as the case may be, of his adopters.

Section 2

An action to enforce the liability may be brought by the personal representative of the passenger or by any person for whose benefit the liability is under the last preceding paragraph enforceable, but only one action shall be brought in Malaysia in respect of the death of any one passenger, and every such action by whomsoever brought shall be for the benefit of all such persons so entitled as aforesaid as either are domiciled in Malaysia or, not being domiciled there, expressing a desire to take the benefit of the action.

Section 3

Subject to subsections 6(2) and (3), the amount recovered in any such action, after deducting any costs not recovered from the defendant, shall be divided between the persons entitled in such proportions as the Court (or, where the action is tried with a jury, the jury) direct.

30 Laws of Malaysia ACT 148

FOURTH SCHEDULE

[Subsection 14(1)]

The Carriage by Air Enactment 1935 F.M.S. Enactment No. 6 of 1935.

The Carriage by Air Enactment 1935 Johore Enactment No. 3 of 1935.

The Carriage by Air Enactment 1935 Kelantan Enactment No. 5 of 1935.

The Carriage by Air Enactment 1954 Kedah Enactment No. 6 of 1954.

The Carriage by Air Enactment 1953 Perlis Enactment No. 7 of 1953.

FIFTH SCHEDULE

[Section 2]

MONTREAL PROTOCOL No. 4

TO AMEND THE CONVENTION FOR THE UNIFICATION OF CERTAIN

RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR

SIGNED AT WARSAW ON 12 OCTOBER 1929

AS AMENDED BY THE PROTOCOL DONE AT THE HAGUE ON 28

SEPTEMBER 1955 SIGNED AT MONTREAL ON 25 SEPTEMBER 1975

SCOPE – DEFINITIONS

Article 1

(1)

This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.

(2)

For the purposes of this Convention, the expression “international carriage”

means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two High

Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a

Carriage by Air 31

single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.

(3)

Carriage to be performed by several successive air carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State.

Article 2

(1)

This Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in Article 1.

(2)

In the carriage of postal items, the carrier shall be liable only to the relevant postal administration in accordance with the rules applicable to the relationship between the carriers and the postal administrations.

(3)

Except as provided in paragraph (2) of this Article, the provisions of this

Convention shall not apply to the carriage of postal items.

DOCUMENTS OF CARRIAGE

SECTION 1

PASSENGER TICKET

Article 3

(1)

In respect of the carriage of passengers a ticket shall be delivered containing:

(a)

an indication of the place of departure and the place of destination;

(b)

if the place of departure and the place of destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;

(c)

a notice to the effect that, if the passenger’s journey involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the

32 Laws of Malaysia ACT 148

Convention governs and in most cases limits the liability of carriers for death or personal injury and in respect of loss of or damage to baggage.

(2)

The passenger ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage. The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage which shall, none the less, be subject to the rules of this

Convention. Nevertheless, if, with the consent of the carrier, the passenger embarks without a passenger ticket having been delivered, or if the ticket does not include the notice required by paragraph (1)(c) of this Article, the carrier shall not be entitled to avail himself of the provisions of Article 22.

SECTION 2

BAGGAGE CHECK

Article 4

(1)

In respect of the carriage of registered baggage, a baggage check shall be delivered, which, unless combined with or incorporated in a passenger ticket which complies with the provisions of Article 3, paragraph (1), shall contain:

(a)

an indication of the place of departure and the place of destination;

(b)

if the place of departure and the place of destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;

(b)

a notice to the effect that, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw

Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers in respect of loss or damage to baggage.

(2)

The baggage check shall constitute prima facie evidence of the registration of the baggage and of the conditions of the contract of carriage. The absence, irregularity or loss of the baggage check does not affect the existence or the validity of the contract of carriage which shall, none the less, be subject to the rules of this

Convention. Nevertheless, if the carrier takes charge of the baggage without a baggage check having been delivered or if the baggage check [unless combined with or incorporated in the passenger ticket which complies with the provisions of

Article 3, paragraph (1)(c)] does not include the notice required by paragraph (1)(c)

of this Article, he shall not be entitled to avail himself of the provision of Article 22, paragraph (2).

Carriage by Air 33

SECTION 3

DOCUMENTATION RELATING TO CARGO

Article 5

(1)

In respect of the carriage of cargo an air waybill shall be delivered.

(2)

Any other means which would preserve a record of the carriage to be performed may, with the consent of the consignor, be substituted for the delivery of an air waybill. If such other means are used, the carrier shall, if so requested by the consignor, deliver to the consignor a receipt for the cargo permitting identification of the consignment and access to the information contained in the record preserved by such other means.

(3)

The impossibility of using, at points of transit and destination, the other means which would preserve a record of the carriage referred to in paragraph (2) of this Article does not entitle the carrier to refuse to accept the cargo for carriage.

Article 6

(1)

The air waybill shall be made out by the consignor in three original parts.

(2)

The first part shall be marked “for the carrier”; it shall be signed by the consignor. The second part shall be marked “for the consignee”; it shall be signed by the consignor and the carrier. The third part shall be signed by the carrier and handed by him to the consignor after the cargo has been accepted.

(3)

The signature of the carrier and that of the consignor may be printed or stamped.

(4)

If, at the request of the consignor, the carrier makes out the air waybill, he shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor.

Article 7

Where there is more than one package:

(a)

the carrier of the cargo has the right to require the consignor to make out separate air waybills;

(b)

the consignor has the right to require the carrier to deliver separate receipts when the other means referred to in paragraph (2) of Article 5 are used.

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Article 8

The air waybill and receipt for the cargo shall contain:

(a)

an indication of the place of departure the place of and destination;

(b)

if the place of departure and the place of destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place; and

(c)

an indication of the weight of the consignment.

Article 9

Non-compliance with the provisions of Articles 5 to 8 shall not affect the existence or the validity of the contract of carriage, which shall, none the less, be subject to the rules of this Convention including those relating to limitation of liability.

Article 10

(1)

The consignor is responsible for the correctness of the particulars and statements relating to the cargo inserted by him or on his behalf in the air waybill or furnished by him or on his behalf to the carrier for insertion in the receipt for the cargo or for insertion in the record preserved by the other means referred to in paragraph (2) of Article 5.

(2)

The consignor shall indemnify the carrier against all damage suffered by him, or by any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements furnished by the consignor or on his behalf.

(3)

Subject to the provisions of paragraphs (1) and (2) of this Article, the carrier shall indemnify the consignor against all damage suffered by him, or by any other person to whom the consignor is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements inserted by the carrier or on his behalf in the receipt for the cargo or in the record preserved by the other means referred to in paragraph (2) of Article 5.

Article 11

(1)

The air waybill or the receipt for the cargo is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage mentioned therein.

Carriage by Air 35

(2)

Any statements in the air waybill or the receipt for the cargo 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 as they both have been, and are stated in the air waybill to have been, checked by him in the presence of the consignor, or relate to the apparent condition of the cargo.

Article 12

(1)

Subject to his liability to carry out all his obligations under the contract of carriage, the consignor has the right to dispose of the cargo by withdrawing it at the airport of departure or destination, or by stopping it in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee originally designated, or by requiring it to be returned to the airport of departure. He must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and he must repay any expenses occasioned by the exercise of this right.

(2)

If it is impossible to carry out the orders of the consignor the carrier must so inform him forthwith.

(3)

If the carrier obeys the orders of the consignor for the disposition of the cargo without requiring the production of the part of the air waybill or the receipt for the cargo delivered to the latter, he will be liable, without prejudice to his right of recovery from the consignor, for any damage which may be caused thereby to any person who is lawfully in possession of that part of the air waybill or the receipt for the cargo.

(4)

The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Article 13. Nevertheless, if the consignee declines to accept the cargo, or if he cannot be communicated with, the consignor resumes his right of disposition.

Article 13

(1)

Except when the consignor has exercised his right under Article 12, the consignee is entitled, on the arrival of the cargo at the place of destination, to require the carrier to deliver the cargo to him, on payment of the charges due and on complying with the conditions of carriage.

(2)

Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives.

(3)

If the carrier admits the loss of the cargo, or if the cargo has not arrived at the expiration of seven days after the date on which it ought to have arrived, the

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consignee is entitled to enforce against the carrier the rights which flow from the contract of carriage.

Article 14

The consignor and the consignee can respectively enforce all the rights given to them by Articles 12 and 13, each in his own name, whether he is acting in his own interest or in the interest of another, provided that he carries out the obligations imposed by the contract of carriage.

Article 15

(1)

Articles 12, 13 and 14 do not affect the relations of the consignor and the consignee with each other or the mutual relations of third parties whose rights are derived either from the consignor or from the consignee.

(2)

The provisions of Articles 12, 13 and 14 can only be varied by express provision in the air waybill or the receipt for the cargo.

Article 16

(1)

The consignor must furnish such information and such documents as are necessary to meet the formalities of customs, octroi or police before the cargo can be delivered to the consignee. The consignor is liable to the carrier for any damage occasioned by the absence, insufficiency or irregularity of any such information or documents, unless the damage is due to the fault of the carrier, his servants or agents.

(2)

The carrier is under no obligation to enquire into the correctness or sufficiency of such information or documents.

LIABILITY OF THE CARRIER

Article 17

The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Article 18

(1)

The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, any registered baggage, if the occurrence which caused the damage so sustained took place during the carriage by air.

Carriage by Air 37

(2)

The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the occurrence which caused the damage so sustained took place during the carriage by air.

(3)

However, the carrier is not liable if he proves that the destruction, loss of, or damage to, the cargo resulted solely from one or more of the following:

(a)

inherent defect, quality or vice of that cargo;

(b)

defective packing of that cargo performed by a person other than the carrier or his servants or agents;

(c)

an act of war or an armed conflict;

(d)

an act of a public authority carried out in connection with the entry, exit or transit of the cargo.

(4)

The carriage by air within the meaning of the preceding paragraphs of this

Article comprises the period during which the baggage or cargo is in the charge of the carrier, whether in an airport or on board an aircraft or, in the case of a landing outside an airport, in any place whatsoever.

(5)

The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an airport. If, however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transshipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air.

Article 19

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.

Article 20

In the case of passengers and baggage, and in the case of damage occasioned by delay in the carriage of cargo, the carrier shall not be liable if he proves that he and his servants and agents have taken all necessary measures to avoid the damage or that it was impossible for them to take such measures.

Article 21

(1)

In the carriage of passengers and baggage, if the carrier proves that the damage was caused by or contributed to by the negligence of the person suffering the damage the Court may, in accordance with the provisions of its own law,

38 Laws of Malaysia ACT 148

exonerate the carrier wholly or partly from his liability.

(2)

In the carriage of cargo, if the carrier proves that the damage was caused by or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he derives his rights, the carrier shall be wholly or partly exonerated from his liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage.

Article 22

(1)

In the carriage of persons the liability of the carrier for each passenger is limited to the sum of 16,600 Special Drawing Rights. Where, in accordance with the law of the court seised of the case, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed this limit. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.

(2)

(a)

In the carriage of registered baggage, the liability of the carrier is limited to a sum of 17 Special Drawing Rights per kilogramme, unless the passenger or consignor has made, at the same time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the passenger’s or the consignor’s actual interest in delivery at destination.

(b)

In the carriage of cargo, the liability of the carrier is limited to a sum of 17

Special Drawing Rights per kilogramme, unless the consignor has made, at the same time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the consignor’s actual interest in delivery at destination.

(c)

In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.

(3)

As regards objects of which the passenger takes charge himself the liability of the carrier is limited to 332 Special Drawing Rights per passenger.

Carriage by Air 39

(4)

The limits prescribed in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff. The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later.

(5)

The sums mentioned in terms of the Special Drawing Right in this Article shall be deemed to refer to the Special Drawing Right as defined by the

International Monetary Fund. Conversion of the sums into national currencies shall, in case of judicial proceedings, be made according to the value of such currencies in terms of the Special Drawing Right at the date of judgment.

(6)

The value of a national currency, in terms of the Special Drawing Right, of a

High Contracting Party which is a Member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the

International Monetary Fund, in effect at the date of the judgment for its operations and transactions. The value of a national currency, in terms of the Special Drawing

Right, of a High Contracting Party which is not a Member of the International

Monetary Fund, shall be calculated in a manner determined by that High

Contracting Party. Nevertheless, those States which are not Members of the

International Monetary Fund and whose law does not permit the application of the provision of paragraph (2)(b) of Article 22 may, at the time of ratification or accession or at any time thereafter, declare that the limit of liability of the carrier in judicial proceedings in their territories is fixed at a sum of two hundred and fifty monetary units per kilogramme. This monetary unit corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. This sum may be converted into the national currency concerned in round figures. The conversion of this sum into national currency shall be made according to the law of the State concerned.

Article 23

(1)

Any provision tending to relieve the carrier of liability or to fix a lower limit than that laid down in this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Convention.

(2)

Paragraph (1) of this Article shall not apply to provisions governing loss or damage resulting from the inherent defect, quality or vice of the cargo carried.

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Article 24

(1)

In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this

Convention, without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.

(2)

In the carriage of cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and limits of liability set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. Such limits of liability constitute maximum limits and may not be exceeded whatever the circumstances which give rise to the liability.

Article 25

In the carriage of passengers and baggage, the limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.

Article 25A

(1)

If an action is brought against a servant or agent of the carrier arising out of damage to which this Convention relates, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the limits of liability which that carrier himself is able to invoke under Article 22.

(2)

The aggregate of the amounts recoverable from the carrier, his servants or agents, in that case, shall not exceed the said limits.

(3)

In the carriage of passengers and baggage, the provisions of paragraphs (1)

and (2) of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.

Article 26

(1)

Receipt by the person entitled to delivery of baggage or cargo without complaint is prima facie evidence that the same have been delivered in good condition and in accordance with the document of carriage.

Carriage by Air 41

(2)

In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo has been placed at his disposal.

(3)

Every complaint must be made in writing upon the document of carriage or by separate notice in writing despatched within the times aforesaid.

(4)

Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part.

Article 27

In the case of the death of the person liable, an action for damages lies in accordance with the terms of this Convention against those legally representing his estate.

Article 28

(1)

An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the court having jurisdiction at the place of destination.

(2)

Questions of procedure shall be governed by the law of the court seised of the case.

Article 29

(1)

The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

(2)

The method of calculating the period of limitation shall be determined by the law of the court seised of the case.

Article 30

(1)

In the case of carriage to be performed by various succesive carriers and falling within the definition set out in the third paragraph of Article 1, each carrier who accepts passengers, baggage or cargo is subjected to the rules set out in this

Convention, and is deemed to be one of the contracting parties to the contract of

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carriage in so far as the contract deals with that part of the carriage which is performed under his supervision.

(2)

In the case of carriage of this nature, the passenger or his representative can take action only against the carrier who performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.

(3)

As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier who performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.

Article 30A

Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person.

PROVISIONS RELATING TO COMBINED CARRIAGE

Article 31

(1)

In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Convention apply only to the carriage by air, provided that carriage by air falls within the terms of Article 1.

(2)

Nothing in this Convention shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this Convention are observed as regards the carriage by air.

GENERAL AND FINAL PROVISIONS

Article 32

Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Convention, whether by deciding the law to be applied, or by altering the rules

Carriage by Air 43

as to jurisdiction, shall be null and void. Nevertheless for the carriage of cargo, arbitration clauses are allowed, subject to this Convention, if the arbitration is to take place within one of the jurisdictions referred to in the first paragraph of Article 28.

Article 33

Except as provided in paragraph (3) of Article 5, nothing in this Convention shall prevent the carrier either from refusing to enter into any contract of carriage or from making regulations which do not conflict with the provisions of this

Convention.

Article 34

The provisions of Articles 3 to 8 inclusive relating to documents of carriage shall not apply in the case of carriage performed in extraordinary circumstances outside the normal scope of an air carrier’s business.

Article 35

The expression “days” when used in this Convention means current days not working days.

Article 36

The Convention is drawn up in French in a single copy which shall remain deposited in the archives of the Ministry of Foreign Affairs of Poland and of which one duly certified copy shall be sent by the Polish Government to the Government of each of the High Contracting Parties.

Article 40A

(1)

[This paragraph is not reproduced. It defines “High Contracting Party”.]

(2)

For the purposes of the Convention the word “territory” means not only the metropolitan territory of a State but also all other territories for the foreign relations of which that state is responsible.

[Articles 37, 38, 39, 40 and 41 and the concluding words of the Convention are not reproduced. They deal with the coming into force of the Convention.]

ADDITIONAL PROTOCOL

(With reference to Article 2)

The High Contracting Parties reserve to themselves the right to declare at the time

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of ratification or of accession that the first paragraph of Article 2 of this Convention shall not apply to international carriage by air performed directly by the State, its colonies, protectorates or mandated territories or by any other territory under its sovereignty, suzerainty or authority.

SIXTH SCHEDULE

[Section 2]

THE MONTREAL CONVENTION, 1999

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES

RELATING TO INTERNATIONAL CARRIAGE BY AIR

SIGNED AT MONTREAL ON 28 MAY 1999

THE STATES PARTIES TO THIS CONVENTION

RECOGNIZING the significant contribution of the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed in Warsaw on 12

October 1929, hereinafter referred to as the “Warsaw Convention”, and other related instruments to the harmonization of private international air law;

RECOGNIZING the need to modernize and consolidate the Warsaw Convention and related instruments;

RECOGNIZING the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution;

REAFFIRMING the desirability of an orderly development of international air transport operations and the smooth flow of passengers, baggage and cargo in accordance with the principles and objectives of the Convention on International

Civil Aviation, done at Chicago on 7 December 1944;

CONVINCED that collective State action for further harmonization and codification of certain rules governing international carriage by air through a new

Convention is the most adequate means of achieving an equitable balance of interests;

HAVE AGREED as follows:

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GENERAL PROVISIONS

Article 1

Scope of Application

Section 1

This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.

Section 2

For the purposes of this Convention, the expression “international carriage”

means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two

States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State

Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.

Section 3

Carriage to be performed by several successive carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State.

Section 4

This Convention applies also to carriage as set out in Chapter V, subject to the terms contained therein.

Article 2

Carriage Performed by State and Carriage of Postal Items

Section 1

This Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in Article 1.

Section 2

In the carriage of postal items, the carrier shall be liable only to the relevant postal administration in accordance with the rules applicable to the relationship between the carriers and the postal administrations.

Section 3

Except as provided in paragraph 2 of this Article, the provisions of this

Convention shall not apply to the carriage of postal items.

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DOCUMENTATION AND DUTIES OF THE PARTIES RELATING TO THE CARRIAGE OF

PASSENGERS, BAGGAGE AND CARGO

Article 3

Passengers and Baggage

Section 1

In respect of carriage of passengers, an individual or collective document of carriage shall be delivered containing:

(a)

an indication of the place of departure the place of and destination;

(b)

if the place of departure and the place of destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place.

Section 2

Any other means which preserves the information indicated in paragraph 1

may be substituted for the delivery of the document referred to in that paragraph. If any such other means is used, the carrier shall offer to deliver to the passenger a written statement of the information so preserved.

Section 3

The carrier shall deliver to the passenger a baggage identification tag for each piece of checked baggage.

Section 4

The passenger shall be given written notice to the effect that where this

Convention is applicable it governs and may limit the liability of carriers in respect of death or injury and for destruction or loss of, or damage to, baggage, and for delay.

Section 5

Non-compliance with the provisions of the foregoing paragraphs shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to the rules of this Convention including those relating to limitation of liability.

Article 4

Cargo

Section 1

In respect of the carriage of cargo, an air waybill shall be delivered.

Section 2

Any other means which preserves a record of the carriage to be performed may be substituted for the delivery of an air waybill. If such other means are used, the carrier shall, if so requested by the consignor, deliver to the consign or a cargo receipt permitting identification of the consignment and access to the information contained in the record preserved by such other means.

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Article 5

Contents of Air Waybill or Cargo Receipt

The air waybill or the cargo receipt shall include:

(a)

an indication of the place of departure and the place of destination;

(b)

if the place of departure and the place of destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place; and

(c)

an indication of the weight of the consignment.

Article 6

Document Relating to the Nature of the Cargo

The consignor may be required, if necessary to meet the formalities of customs, police and similar public authorities, to deliver a document indicating the nature of the cargo. This provision creates for the carrier no duty, obligation or liability resulting therefrom.

Article 7

Description of Air Waybill

Section 1

The air waybill shall be made out by the consignor in three original parts.

Section 2

The first part shall be marked “for the carrier”; it shall be signed by the consignor. The second part shall be marked “for the consignee”; it shall be signed by the consignor and by the carrier. The third part shall be signed by the carrier who shall hand it to the consignor after the cargo has been accepted.

Section 3

The signature of the carrier and that of the consignor may be printed or stamped.

Section 4

If, at the request of the consignor, the carrier makes out the air waybill, the carrier shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor.

Article 8

Documentation for Multiple Packages

When there is more than one package:

(a)

the carrier of cargo has the right to require the consignor to make out separate air waybills;

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(b)

the consignor has the right to require the carrier to deliver separate cargo receipts when the other means referred to in paragraph 2 of Article 4 are used.

Article 9

Non-compliance with Documentary Requirements

Non-compliance with the provisions of Articles 4 to 8 shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to the rules of this Convention including those relating to limitation of liability.

Article 10

Responsibility for Particulars of Documentation

Section 1

The consignor is responsible for the correctness of the particulars and statements relating to the cargo inserted by it or on its behalf in the air waybill or furnished by it or on its behalf to the carrier for insertion in the cargo receipt or for insertion in the record preserved by the other means referred to in paragraph 2 of

Article 4. The foregoing shall also apply where the person acting on behalf of the consignor is also the agent of the carrier.

Section 2

The consignor shall indemnify the carrier against all damage suffered by it, or by any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements furnished by the consignor or on its behalf.

Section 3

Subject to the provisions of paragraphs 1 and 2 of this Article, the carrier shall indemnify the consignor against all damage suffered by it, or by any other person to whom the consignor is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements inserted by the carrier or on its behalf in the cargo receipt or in the record preserved by the other means referred to in paragraph 2 of Article 4.

Article 11

Evidentiary Value of Documentation

Section 1

The air waybill or the cargo receipt is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage mentioned therein.

Section 2

Any statements in the air waybill or the cargo receipt 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 as they both have been, and are stated in the air waybill or the cargo

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receipt to have been, checked by it in the presence of the consignor, or relate to the apparent condition of the cargo.

Article 12

Right of Disposition of Cargo

Section 1

Subject to its liability to carry out all its obligations under the contract of carriage, the consignor has the right to dispose of the cargo by withdrawing it at the airport of departure or destination, or by stopping it in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee originally designated, or by requiring it to be returned to the airport of departure. The consignor must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and must reimburse any expenses occasioned by the exercise of this right.

Section 2

If it is impossible to carry out the instructions of the consignor, the carrier must so inform the consignor forthwith.

Section 3

If the carrier carries out the instructions of the consignor for the disposition of the cargo without requiring the production of the part of the air waybill or the cargo receipt delivered to the latter, the carrier will be liable, without prejudice to its right of recovery from the consignor, for any damage which may be caused thereby to any person who is lawfully in possession of that part of the air waybill or the cargo receipt.

Section 4

The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Article 13. Nevertheless, if the consignee declines to accept the cargo, or cannot be communicated with, the consignor resumes its right of disposition.

Article 13

Delivery of the Cargo

Section 1

Except when the consignor has exercised its right under Article 12, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to deliver the cargo to it, on payment of the charges due and on complying with the conditions of carriage.

Section 2

Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives.

Section 3

If the carrier admits the loss of the cargo, or if the cargo has not arrived at the expiration of seven days after the date on which it ought to have arrived, the consignee is entitled to enforce against the carrier the rights which flow from the contract of carriage.

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Article 14

Enforcement of the Rights of Consignor and Consignee

The consignor and the consignee can respectively enforce all the rights given to them by Articles 12 and 13, each in its own name, whether it is acting in its own interest or in the interest of another, provided that it carries out the obligations imposed by the contract of carriage.

Articles 15

Relations of Consignor and Consignee or Mutual Relations of Third Parties

Section 1

Articles 12, 13 and 14 do not affect either the relations of the consignor and the consignee with each other or the mutual relations of third parties whose rights are derived either from the consignor or from the consignee.

Section 2

The provisions of Articles 12, 13 and 14 can only be varied by express provision in the air waybill or the cargo receipt.

Article 16

Formalities of Customs, Police or Other Public Authorities

Section 1

The consignor must furnish such information and such documents as are necessary to meet the formalities of customs, police and any other public authorities before the cargo can be delivered to the consignee. The consignor is liable to the carrier for any damage occasioned by the absence, insufficiency or irregularity of any such information or documents, unless the damage is due to the fault of the carrier, its servants or agents.

Section 2

The carrier is under no obligation to enquire into the correctness or sufficiency of such information or documents.

LIABILITY OF THE CARRIER AND EXTENT OF COMPENSATION FOR DAMAGE

Article 17

Death and Injury of Passengers—Damage to Baggage

Section 1

The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Section 2

The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the

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destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.

Section 3

If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.

Section 4

Unless otherwise specified, in this Convention the term “baggage” means both checked baggage and unchecked baggage.

Article 18

Damage to Cargo

Section 1

The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air.

Section 2

However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following:

(a)

inherent defect, quality or vice of that cargo;

(b)

defective packing of that cargo performed by a person other than the carrier or its servants or agents;

(c)

an act of war or an armed conflict;

(d)

an act of public authority carried out in connection with the entry, exit or transit of the cargo.

Section 3

The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier.

Section 4

The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If, however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transshipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage

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by air. If a carrier, without the consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to be carriage by air, such carriage by another mode of transport is deemed to be within the period of carriage by air.

Article 19

Delay

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

Article 20

Exoneration

If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This Article applies to all the liability provisions in this Convention, including paragraph 1 of

Article 21.

Article 21

Compensation in Case of Death or Injury of Passengers

Section 1

For damages arising under paragraph 1 of Article 17 not exceeding 100,000

Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.

Section 2

The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing

Rights if the carrier proves that:

(a)

such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

(b)

such damage was solely due to the negligence or other wrongful act or omission of a third party.

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Article 22

Limits of Liability in Relation to Delay, Baggage and Cargo

Section 1

In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4,150 Special

Drawing Rights.

Section 2

In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.

Section 3

In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 Special Drawing Rights per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination.

Section 4

In the case of destruction, loss, damage or delay of part of the cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the destruction, loss, damage or delay of a part of the cargo, or of an object contained therein, affects the value of other packages covered by the same air waybill, or the same receipt or, if they were not issued, by the same record preserved by the other means referred to in paragraph 2 of Article 4, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.

Section 5

The foregoing provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.

Section 6

The limits prescribed in Article 21 and in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest. The foregoing provision shall not apply if the amount

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of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later.

Article 23

Conversion of Monetary Units

Section 1

The sums mentioned in terms of Special Drawing Right in this Convention shall be deemed to refer to the Special Drawing Right as defined by the

International Monetary Fund. Conversion of the sums into national currencies shall, in case of judicial proceedings, be made according to the value of such currencies in terms of the Special Drawing Right at the date of the judgment. The value of a national currency, in terms of the Special Drawing Right, of a State Party which is a Member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund, in effect at the date of the judgment, for its operations and transactions. The value of a national currency, in terms of the Special Drawing Right, of a State Party which is not a Member of the International Monetary Fund, shall be calculated in a manner determined by that State.

Section 2

Nevertheless, those States which are not Members of the International

Monetary Fund and whose law does not permit the application of the provision of paragraph 1 of this Article may, at the time of ratification or accession or at any time thereafter, declare that the limit of liability of the carrier prescribed in Article 21 is fixed at a sum of 1,500,000 monetary units per passenger in judicial proceedings in their territories; 62,500 monetary units per passenger with respect to paragraph 1 of Article 22; 15,000 monetary units per passenger with respect to paragraph 2 of Article 22; and 250 monetary units per kilogramme with respect to paragraph 3 of Article 22. This monetary unit corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. These sums may be converted into the national currency concerned in round figures. The conversion of these sums into national currency shall be made according to the law of the State concerned.

Section 3

The calculation mentioned in the last sentence of paragraph 1 of this Article and the conversion method mentioned in paragraph 2 of this Article shall be made in such manner as to express in the national currency of the State Party as far as possible the same real value for the amounts in Articles 21 and 22 as would result from the application of the first three sentences of paragraph 1 of this Article.

States Parties shall communicate to the Depositary the manner of calculation pursuant to paragraph 1 of this Article, or the result of the conversion in paragraph 2 of this Article as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.

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Article 24

Review of Limits

Section 1

Without prejudice to the provision of Article 25 of this Convention and subject to paragraph 2 below, the limits of liability prescribed in Articles 21, 22 and 23

shall be reviewed by the Depositary at five-year intervals, the first such review to take place at the end of the fifth year following the date of entry into force of this

Convention, or if the Convention does not enter into force within five years of the date it is first open for signature, within the first year of its entry into force, by reference to an inflation factor which corresponds to the accumulated rate of inflation since the previous revision or in the first instance since the date of entry into force of the Convention. The measure of the rate of inflation to be used in determining the inflation factor shall be the weighted average of the annual rates of increase or decrease in the Consumer Price Indices of the States whose currencies comprise the Special Drawing Right mentioned in paragraph 1 of Article 23.

Section 2

If the review referred to in the preceding paragraph concludes that the inflation factor has exceeded 10 per cent, the Depositary shall notify States Parties of a revision of the limits of liability. Any such revision shall become effective six months after its notification to the States Parties. If within three months after its notification to the States Parties a majority of the States Parties register their disapproval, the revision shall not become effective and the Depositary shall refer the matter to a meeting of the States Parties. The Depositary shall immediately notify all States Parties of the coming into force of any revision.

Section 3

Notwithstanding paragraph 1 of this Article, the procedure referred to in paragraph 2 of this Article shall be applied at any time provided that one-third of the States Parties express a desire to that effect and upon condition that the inflation factor referred to in paragraph 1 has exceeded 30 per cent since the previous revision or since the date of entry into force of this Convention if there has been no previous revision. Subsequent reviews using the procedure described in paragraph 1 of this Article will take place at five-year intervals starting at the end of the fifth year following the date of the reviews under the present paragraph.

Article 25

Stipulation on Limits

A carrier may stipulate that the contract of carriage shall be subject to higher limits of liability than those provided for in this Convention or to no limits of liability whatsoever.

Article 26

Invalidity of Contractual Provisions

Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of

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any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Convention.

Article 27

Freedom to Contract

Nothing contained in this Convention shall prevent the carrier from refusing to enter into any contract of carriage, from waiving any defenses available under the

Convention, or from laying down conditions which do not conflict with the provisions of this Convention.

Article 28

Advance Payments

In the case of aircraft accidents resulting in death or injury of passengers, the carrier shall, if required by its national law, make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payments shall not constitute a recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.

Article 29

Basis of Claims

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non compensatory damages shall not be recoverable.

Article 30

Servants, Agents—Aggregation of Claims

Section 1

If an action is brought against a servant or agent of the carrier arising out of damage to which the Convention relates, such servant or agent, if they prove that they acted within the scope of their employment, shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke under this Convention.

Section 2

The aggregate of the amounts recoverable from the carrier, its servants and agents, in that case, shall not exceed the said limits.

Section 3

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Save in respect of the carriage of cargo, the provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.

Article 31

Timely Notice of Complaints

Section 1

Receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage or with the record preserved by the other means referred to in paragraph 2 of Article 3 and paragraph 2 of Article 4.

Section 2

In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.

Section 3

Every complaint must be made in writing and given or dispatched within the times aforesaid.

Section 4

If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part.

Article 32

Death of Person Liable

In the case of the death of the person liable, an action for damages lies in accordance with the terms of this Convention against those legally representing his or her estate.

Article 33

Jurisdiction

Section 1

An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.

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Section 2

In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this

Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.

Section 3

For the purposes of paragraph 2:

(a)

“commercial agreement” means an agreement, other than an agency agreement, made between carriers and relating to the provision of their joint services for carriage of passengers by air;

(b)

“principal and permanent residence” means the one fixed and permanent abode of the passenger at the time of the accident. The nationality of the passenger shall not be the determining factor in this regard.

Section 4

Questions of procedure shall be governed by the law of the court seised of the case.

Article 34

Arbitration

Section 1

Subject to the provisions of this Article, the parties to the contract of carriage for cargo may stipulate that any dispute relating to the liability of the carrier under this Convention shall be settled by arbitration. Such agreement shall be in writing.

Section 2

The arbitration proceedings shall, at the option of the claimant, take place within one of the jurisdictions referred to in Article 33.

Section 3

The arbitrator or arbitration tribunal shall apply the provisions of this

Convention.

Section 4

The provisions of paragraphs 2 and 3 of this Article shall be deemed to be part of every arbitration clause or agreement, and any term of such clause or agreement which is inconsistent therewith shall be null and void.

Article 35

Limitation of Actions

Section 1

The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the

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date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

Section 2

The method of calculating that period shall be determined by the law of the court seised of the case.

Article 36

Successive Carriage

Section 1

In the case of carriage to be performed by various successive carriers and falling within the definition set out in paragraph 3 of Article 1, each carrier which accepts passengers, baggage or cargo is subject to the rules set out in this

Convention and is deemed to be one of the parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under its supervision.

Section 2

In the case of carriage of this nature, the passenger or any person entitled to compensation in respect of him or her can take action only against the carrier which performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.

Section 3

As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier which performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.

Article 37

Right of Recourse against Third Parties

Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person.

COMBINED CARRIAGE

Article 38

Combined Carriage

Section 1

In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Convention shall, subject to

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paragraph 4 of Article 18, apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1.

Section 2

Nothing in this Convention shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this Convention are observed as regards the carriage by air.

CARRIAGE BY AIR PERFORMED BY A PERSON OTHER THAN THE CONTRACTING

CARRIER

Article 39

Contracting Carrier—Actual Carrier

The provisions of this Chapter apply when a person (hereinafter referred to as “the contracting carrier”) as a principal makes a contract governed by this Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor, and another person (hereinafter referred to as “the actual carrier”)

performs, by virtue of authority from the contracting carrier, the whole or part of the carriage, but is not with respect to such part a successive carrier within the meaning of this Convention. Such authority shall be presumed in the absence of proof to the contrary.

Article 40

Respective Liability of Contracting and Actual Carriers

If an actual carrier performs the whole or part of carriage which, according to the contract referred to in Article 39, is governed by this Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in this

Chapter, be subject to the rules of this Convention, the former for the whole of the carriage contemplated in the contract, the latter solely for the carriage which it performs.

Article 41

Mutual Liability

Section 1

The acts and omissions of the actual carrier and of its servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the contracting carrier.

Section 2

The acts and omissions of the contracting carrier and of its servants and agents acting within the scope of their employment shall, in relation to the carriage

Carriage by Air 61

performed by the actual carrier, be deemed to be also those of the actual carrier.

Nevertheless, no such act or omission shall subject the actual carrier to liability exceeding the amounts referred to in Articles 21, 22, 23 and 24. Any special agreement under which the contracting carrier assumes obligations not imposed by this Convention or any waiver of rights or defenses conferred by this Convention or any special declaration of interest in delivery at destination contemplated in Article 22 shall not affect the actual carrier unless agreed to by it.

Article 42

Addressee of Complaints and Instructions

Any complaint to be made or instruction to be given under this Convention to the carrier shall have the same effect whether addressed to the contracting carrier or to the actual carrier. Nevertheless, instructions referred to in Article 12 shall only be effective if addressed to the contracting carrier.

Article 43

Servants and Agents

In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of the contracting carrier shall, if they prove that they acted within the scope of their employment, be entitled to avail themselves of the conditions and limits of liability which are applicable under this Convention to the carrier whose servant or agent they are, unless it is proved that they acted in a manner that prevents the limits of liability from being invoked in accordance with this

Convention.

Article 44

Aggregation of Damages

In relation to the carriage performed by the actual carrier, the aggregate of the amounts recoverable from that carrier and the contracting carrier, and from their servants and agents acting within the scope of their employment, shall not exceed the highest amount which could be awarded against either the contracting carrier or the actual carrier under this Convention, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to that person.

Article 45

Addressee of Claims

In relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately. If the action is brought against only one of those carriers, that carrier shall have the right to require the other carrier to

62 Laws of Malaysia ACT 148

be joined in the proceedings, the procedure and effects being governed by the law of the court seised of the case.

Article 46

Additional Jurisdiction

Any action for damages contemplated in Article 45 must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before a court in which an action may be brought against the contracting carrier, as provided in

Article 33, or before the court having jurisdiction at the place where the actual carrier has its domicile or its principal place of business.

Article 47

Invalidity of Contractual Provisions

Any contractual provision tending to relieve the contracting carrier or the actual carrier of liability under this Chapter or to fix a lower limit than that which is applicable according to this Chapter shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Chapter.

Article 48

Mutual Relations of Contracting and Actual Carriers

Except as provided in Article 45, nothing in this Chapter shall affect the rights and obligations of the carriers between themselves, including any right of recourse or indemnification.

(1)

(This paragraph is not reproduced. It defines “High Contracting Party”.)

(2)

For the purposes of the Convention the word territory means not only the metropolitan territory of a State but also all other territories for the foreign relations of which that State is responsible.

(Articles 36, 37, 38, 39, 40 and 41 and the concluding words of the Convention are not reproduced. They deal with the coming into force of the Convention and the language of the text.)

26 Laws of Malaysia ACT 148

ADDITIONAL PROTOCOL

(With reference to Article 2)

The High Contracting Parties reserve to themselves the right to declare at the time of ratification or of accession that the first paragraph of Article 2 of this Convention shall not apply to international carriage by air performed directly by the State, its colonies, protectorates or mandated territories or by any other territory under its sovereignty, suzerainty or authority.

SECOND SCHEDULE

[Section 2]

CONVENTION SUPPLEMENTARY TO THE WARSAW CONVENTION FOR

THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL

CARRIAGE BY AIR PERFORMED BY A PERSON OTHER THAN THE

CONTRACTING CARRIER

Article I

In this Convention:

(a)

“Warsaw Convention” means the Convention for the Unification of

Certain Rules Relating to International Carriage By Air signed at Warsaw on 12 October 1929, or the Warsaw Convention as amended at The Hague 1955, according to whether the carriage under the agreement referred to in paragraph (b) is governed by the one or by the other;

(b)

“contracting carrier” means a person who as a principal makes an agreement for carriage governed by the Warsaw Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor.

(c)

“actual carrier” means a person, other than the contracting carrier, who, by virtue of authority from the contracting carrier, performs the whole or part of the carriage contemplated in paragraph (b) but who is not with respect to such part a successive carrier within the meaning of the Warsaw

Convention. Such authority is presumed in the absence of proof to the contrary.

Carriage by Air 27

Article II

If an actual carrier performs the whole or part of carriage which, according to the agreement referred to in Article I, paragraph (b), is governed by the Warsaw

Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in this Convention, be subject to the rules of the Warsaw

Convention, the former for the whole of the carriage contemplated in the agreement, the latter solely for the carriage which he performs.

Article III

OTHER PROVISIONS

Article 49

Mandatory Application

Any clause contained in the contract of carriage and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Convention, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void.

Article 50

Insurance

States Parties shall require their carriers to maintain adequate insurance covering their liability under this Convention. A carrier may be required by the State Party

Carriage by Air 63

into which it operates to furnish evidence that it maintains adequate insurance covering its liability under this Convention.

Article 51

Carriage Performed in Extraordinary Circumstances

The provisions of Articles 3 to 5, 7 and 8 relating to the documentation of carriage shall not apply in the case of carriage performed in extraordinary circumstances outside the normal scope of a carrier’s business.

Article 52

Definition of Days

The expression “days” when used in this Convention means calendar days, not working days.

FINAL CLAUSES

Article 53

Signature, Ratification and Entry into Force

For the purpose of this Convention, a “Regional Economic Integration

Organization” means any organization which is constituted by sovereign States of a given region which has competence in respect of certain matters governed by this

Convention and has been duly authorized to sign and to ratify, accept, approve or accede to this Convention. A reference to a “State Party” or “States Parties” in this

Convention, otherwise than in paragraph 2 of Article 1, paragraph 1(b) of Article 3, paragraph (b) of Article 5, Articles 23, 33, 46 and paragraph (b) of Article 57, applies equally to a Regional Economic Integration Organization. For the purpose of Article 24, the references to “a majority of the States Parties” and “one-third of the States Parties” shall not apply to a Regional Economic Integration

Organization.

Article 55

Relationship with other Warsaw Convention Instruments

This Convention shall prevail over any rules which apply to international carriage by air:

Section 1

Between States Parties to this Convention by virtue of those States commonly being Party to:

64 Laws of Malaysia ACT 148

(a)

the Convention for the Unification of Certain Rules Relating to

International Carriage by Air Signed at Warsaw on 12 October 1929

(hereinafter called the Warsaw Convention);

(b)

the Protocol to Amend the Convention for the Unification of Certain Rules

Relating to International Carriage by Air Signed at Warsaw on 12 October 1929, Done at The Hague on 28 September 1955 (hereinafter called The

Hague Protocol);

(c)

the Convention, Supplementary to the Warsaw Convention, for the

Unification of Certain Rules Relating to International Carriage by Air

Performed by a Person Other than the Contracting Carrier, signed at

Guadalajara on 18 September 1961 (hereinafter called the Guadalajara

Convention);

(d)

the Protocol to Amend the Convention for the Unification of Certain Rules

Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at The Hague on 28 September 1955 Signed at Guatemala City on 8 March 1971 (hereinafter called the

Guatemala City Protocol);

(e)

Additional Protocol Nos. 1 to 3 and Montreal Protocol No. 4 to amend the

Warsaw Convention as amended by The Hague Protocol or the Warsaw

Convention as amended by both The Hague Protocol and the Guatemala

City Protocol Signed at Montreal on 25 September 1975 (hereinafter called the Montreal Protocols); or

Section 2

Within the territory of any single State Party to this Convention by virtue of that State being Party to one or more of the instruments referred to in subparagraphs (a) to (e) above.

Article 57

Reservations

No reservation may be made to this Convention except that a State Party may at any time declare by a notification addressed to the Depositary that this Convention shall not apply to:

(a)

international carriage by air performed and operated directly by that State

Party for non-commercial purposes in respect to its functions and duties as a sovereign State; and/or

(b)

the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by that State Party, the whole capacity of which has been reserved by or on behalf of such authorities.

Carriage by Air 65

[Paragraphs 53 (save for part of paragraph 2), 54 and 56 and the concluding words of the Convention are not reproduced. They deal with signature, ratification, coming into force, denunciation and territorial extent where a State has more than one system of law].

66

Act 148

LIST OF AMENDMENTS

Amending law

Short title

In force from

Carriage by Air

(Amendment) Act 2007

8-10-2007

67

Act 148

LIST OF SECTIONS AMENDED

Section

Amending authority

In force from

1

8-10-2007

2

4

8-10-2007

5

8-10-2007

6

8-10-2007

7

8

9

8-10-2007

10

8-10-2007

11A

8-10-2007

12

8-10-2007

Fourth Schedule

8-10-2007

Fifth Schedule

8-10-2007

Sixth Schedule

8-10-2007

*CARRIAGE BY AIR ACT 1974

About this act

(2)

(3)

(4)

(2)

(1A)

(2)

(3)

(4)

(a)

(b)

(2)

(3)

(4)

(5)

(6)

(2)

(3)

(4)

(2)

(1A)

(2)

(2)

(2)

(2)

(3)

(2)

CHAPTER I

(1)

(2)

(3)

(1)

(2)

CHAPTER II

(1)

(a)

(b)

(c)

(2)

(1)

(a)

(b)

(c)

(2)

(1)

(2)

(1)

(2)

(3)

(4)

(3)

(a)

(b)

(c)

(1)

(2)

(1)

(2)

(1)

(2)

(3)

(4)

(1)

(2)

(3)

(1)

(2)

(3)

(1)

(2)

CHAPTER III

(1)

(2)

(3)

(1)

(2)

(b)

(3)

(4)