Act of Parliament · Updated to 1 Jun 2015
Carriage by Air Act 1974
Giving effect to conventions on carriage by airOfficial textFrom Laws of Malaysia Online, unchanged
This Act may be cited as the Carriage By Air Act 1974 and shall extend throughout Malaysia.
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.
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.
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.
6 Laws of Malaysia ACT 148
s 2Interpretation
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.
Subject to this section, the provisions of the Convention shall, so far as they relate to the rights and liabilities of carriers, carriers’
servants and agents, passengers, consignors, consignees and other persons, and subject to the provisions of this Act, have the force of law in Malaysia in relation to any carriage by air to which the
Convention applies, irrespective of the nationality of the aircraft performing that carriage.
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.
The Yang di-Pertuan Agong may by order from time to time certify who are the State Parties to the Carriage by Air Conventions, in respect of what territories they are respectively parties and to what extent they have availed themselves of the provisions of the
Additional Protocol at the end of the Convention or Additional
Protocol at the end of the Amended Convention or Article 57 of the
Montreal Convention, and any such order shall, except in so far as it has been superseded by a subsequent order, be conclusive evidence of the matters so certified.
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.
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
8 Laws of Malaysia ACT 148
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.
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.
An order under this section may contain such transitional and other consequential provisions as appear to the Yang di-Pertuan
Agong to be expedient.
s 5Fatal accidents
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.
It is hereby declared that the limitations on liability in Article 22 of the Convention, Article 22 of the Amended Convention and
Articles 21, 22 and 44 of the Montreal Convention apply whatever the nature of the proceedings by which liability may be enforced and that, in particular—
those limitations apply where proceedings are brought by a tortfeasor to obtain a contribution from another torfeasor; and
Carriage by Air 9
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.
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.
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.
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.
References in this section to Article 22 of the Convention or the Amended Convention include, subject to any necessary
10 Laws of Malaysia ACT 148
modifications, references to that Article as applied by Article 25A of the Convention or the Amended Convention.
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.
No action against a carrier’s servant or agent which arises out of damage to which any of the Carriage by Air Conventions relates shall, if he was acting within the scope of his employment, be brought after more than 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.
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.
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
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.
s 8Contributory negligence
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.
The Yang di-Pertuan Agong may from time to time by order direct that this section shall apply, or shall cease to apply, to Malaysia or any other State, specified in the order.
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.
Each State Party to any of the Carriage by Air Conventions shall for the purposes of any action brought in a court in Malaysia in accordance with Article 28 of the Convention, Article 28 of the
Amended Convention of Articles 33 and 46 of the Montreal
Convention to enforce a claim in respect of carriage undertaken by him, be deemed to have submitted to the jurisdiction of that court, and accordingly rules of court may provide for the manner in which
12 Laws of Malaysia ACT 148
any action is to be commenced and carried on; but nothing in this section shall authorize the issue of execution against the property of any State Party to any of the Carriage by Air Conventions.
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.
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.
Subject to this section, the provisions of the Supplementary
Convention shall, so far as they relate to the rights and liabilities of carriers, carriers’ servants and agents, passengers, consignors, consignees and other persons, and subject to the provisions of this
Act, have the force of law in Malaysia in relation to any carriage by air to which the Supplementary Convention applies, irrespective of the nationality of the aircraft performing that carriage.
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.
Subject to this section, the provisions of the Amended
Convention and the Montreal Convention shall, so far as they relate to the rights and liabilities of carriers, carriers’ servants and agents, passengers, consignors, consignees and other persons, and subject to the provisions of this Act, have the force of law in Malaysia in
Carriage by Air 13
relation to any carriage by air to which the Amended Convention and the Montreal Convention apply, irrespective of the nationality of the aircraft performing that carriage.
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.
The Yang di-Pertuan Agong may by order apply the provisions of the Carriage by Air Conventions together with any other provisions of this Act, to carriage by air, not being carriage by air to which the relevant Convention applies of such description as may be specified in the order, subject to such exceptions, adaptations and modifications, if any, as may be so specified.
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.
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.
s 13Act to bind Federal and State Governments
This Act shall bind the Governments of Malaysia and every State thereof.
The Enactments specified in the Fourth Schedule are repealed.
The Carriage By Air Act 1932 [22 & 23 Geo. 5c. 36], the
14 Laws of Malaysia ACT 148
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].