India is a signatory to the Warsaw Convention of 1929, which is an International Agreement governing the liability of the air carrier in respect of international carriage of passengers, baggage and cargo by air. Under that convention ‘international carriage’ means any carriage in which according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or transshipment, are situated either within the territories of two High Contracting Parties, or within the territories of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another Power, even though that Power is not a party to the Convention. The Convention provides that when an accident occurring during international carriage by air causes damage to a passenger, or a shipper or cargo, there is a presumption of liability of the carrier. The carrier, however, is not liable if he proves that he or his agent had taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures. The Convention balances the imposition of a presumption of liability on the carrier by limiting his liability for each passenger to 1,25,000 gold francs. There is No. limitation of liability if the damage is caused by the willful misconduct of the carrier, or by such default, on his part as, in accordance with the law of the Court ceased of the case, is equivalent to willful misconduct. The Convention also contains detailed provisions regarding documents of carriage.
2. The Warsaw Convention has been given effect to in India by the enactment of the Indian Carriage By Air Act, 1934 (20 of 1934) in regard to international carriage and the provisions of that Act have been extended to domestic carriage, subject to certain exception, adaptations and modifications, by means of a notification issued in 1964.
3. A diplomatic conference under the auspices of International Civil Aviation Organization was held at Hague in September, 1955 which adopted a protocol to amend the provisions of the Warsaw Convention. The Hague protocol was opened for signature on 28th September, 1955 and more than the required number of States have ratified the protocol which came into force between the ratifying States on 1st August, 1963.
4. Some of the amendments effected by the Hague protocol to the Warsaw Convention are (a) simplification of documents of carriage; (b) an increase in the amount specified as the maximum sum for which the carrier may be liable to a passenger, that is to say, the limits of the liability of the carrier in respect of a passenger has been doubled, and unless a higher figure is agreed to by a special contract, the liability is raised from 1,25,000 gold francs per passenger to 2,50,000 gold francs; (c) making the carrier liable where the damage was caused by an error in piloting or in the handling of the air craft or in navigation.
5. Acceptance of the Hague Protocol would put our national carrier on the same footing as many of its international competitors, since the passengers will be able to avail the limit of liability guaranteed by the Hague Protocol the limit being double than that stipulated under the Warsaw Convention.
6. Fifty seven countries have already ratified the Hague Protocol and passengers traveling between those countries would be ensured of the higher limit of compensation.
7. It is, therefore, proposed to enact a law, in place of the existing Indian Carriage By Air Act, 1934, to apply the existing provisions based on the Warsaw Convention to countries which would choose to be governed by that Convention and also to apply the provisions of the Warsaw Convention as amended by the Hague Protocol to countries which may accept the provisions thereof. Under Section 4 of the Indian Carriage By Air Act, 1934, the rules contained in Warsaw Convention have already been applied to non-international carriages subject to certain exceptions, adaptations and modifications. It is now proposed to take power to apply the rules contained in the Warsaw Convention as amended by the Hague Protocol also to non-international carriages subject to exceptions, adoptions and modifications.
8. The Bill seeks to give effect to the above objectives.