The Carriage by Air Acts (Application of Provisions) Order 2004

• Citation: S.I. 2004/1899
• Sections: 72

Section 1 Citation, commencement and effect

(1) This Order may be cited as the Carriage by Air Acts (Application of Provisions) Order 2004.

(2) This Order shall come into force on the tenth day after the day on which it is made.

(3) Nothing in this Order shall affect rights and liabilities arising out of an occurrence which took place before the coming into force of this Order.

Section 2 Interpretation

In this Order—

“ the Act of 1961 ” means the Carriage by Air Act 1961;

“ the Act of 1962 ” means the Carriage by Air (Supplementary Provisions) Act 1962;

“ the 1955 amended Convention ” means the English text of the Warsaw Convention with the amendments made in it by the Hague Protocol as set out in Schedule 1 to the Act of 1961, and includes the Additional Protocol to the Warsaw Convention as set out at the end of that Schedule;

...

“the Council Regulation” means Council Regulation ( EC ) No. 2027/97 as amended by Regulation ( EC ) No. 889/2002 of the European Parliament and of the Council as it has effect in accordance with the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993 as amended by the Decisions of the EEA Joint Committee No. 34/98 of 30th April 1998 and No. 142/2002 of 8th November 2002;

“ the Guadalajara Convention ” means the English text of 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, as set out in the Schedule to the Act of 1962;

“ the MP4 Convention ” means the English text of the Warsaw Convention with the amendments made in it by the Hague Protocol and as further amended by Protocol No. 4 of Montreal, 1975 as set out in Schedule 1A to the Act of 1961; ...

“ the Montreal Convention ” means the Convention for the Unification of Certain Rules for International Carriage by Air done at Montreal on 28 May 1999 ; and

“ UK air carrier ” has the meaning given by Article 2 of the Council Regulation

Section 3 Application

(1) This Order shall apply to all carriage by air, not being carriage to which the 1955 amended Convention, the MP4 amended Convention or the Montreal Convention applies.

(2) This Order shall not apply in relation to UK air carriers to the extent that the provisions of the Council Regulation have the force of law in the United Kingdom.

Section 4 Non-international carriage

Schedule 1 to this Order shall have effect in respect of carriage to which this Order applies being carriage which is not international carriage as defined in Schedule 2 or Schedule 3.

Section 5 International carriage under the unamended Warsaw Convention

(1) Schedule 2 to this Order shall have effect in respect of carriage to which this Order applies, being carriage which is international carriage as defined in that Schedule and not international carriage as defined in Schedule 3.

(2) Section 2 of the Act of 1961 shall apply to such carriage as aforesaid with the following exceptions, adaptations and modifications:

(a) for “any of the Carriage by Air Conventions” there shall be substituted “ the Warsaw Convention ” ;

(b) subsection (1)(b) and (c) shall be omitted;

(c) subsection (1A) shall be omitted;

(d) subsection (2A)(b) and (c) shall be omitted.

(3) Section 5 of the Act of 1961 shall apply to such carriage as aforesaid with the following exceptions, adaptations and modifications:

(a) for “any of the Carriage by Air Conventions” there shall be substituted “ the Warsaw Convention ” ;

(b) subsections (4)(b) and (c) and (5) shall be omitted.

(4) Section 8 of the Act of 1961 shall apply to such carriage as aforesaid with the following exceptions, adaptations and modifications:

(a) for “a Carriage by Air Convention” there shall be substituted “ the Warsaw Convention ” ;

(b) subsections (4)(b) and (c), (5)(b) and (c) and (6)(b) shall be omitted;

(c) in subsection (6) “and the Convention as amended” shall be omitted.

Section 6 International carriage under the unamended Warsaw Convention as amended by Additional Protocol No. 1 of Montreal, 1975

(1) Schedule 3 to this Order shall have effect in respect of carriage to which this Order applies, being carriage which is international carriage as defined in that Schedule.

(2) Section 2 of the 1961 Act shall apply to such carriage as aforesaid with the following exceptions, adaptations and modifications:

(a) for “a Carriage by Air Convention” there shall be substituted “ the Warsaw Convention as amended by Additional Protocol No. 1 of Montreal 1975 ” ;

(b) subsection (1)(b) and (c) shall be omitted;

(c) subsection (1A) shall be omitted;

(d) subsection (2A)(b) and (c) shall be omitted.

(3) Section 5 of the Act of 1961 shall apply to such carriage as aforesaid with the following exceptions, adaptations and modifications:

(a) for “any of the Carriage by Air Conventions” there shall be substituted “ the Warsaw Convention as amended by Additional Protocol No. 1 of Montreal 1975 ” ;

(b) subsections (4)(b) and (c) and (5) shall be omitted.

(4) Section 8 to the Act of 1961 shall apply to such carriage as aforesaid, with the following exceptions, adaptations and modifications:

(a) for “a Carriage by Air Convention” there shall be substituted “ the Warsaw Convention as amended by Additional Protocol No. 1 of Montreal 1975 ” ;

(b) subsections (4)(b) and (c), (5)(b) and (c) and (6)(b) shall be omitted;

(c) in subsection (6) “and the Convention as amended” shall be omitted.

Section 7 Application of certain provisions of the Acts

(1) Sections 3, 4, 4A, 6, 11 and 12 of the Act of 1961 shall apply to carriage to which Schedule 1 to this Order applies as if the references therein to the Convention and the Convention as amended and articles thereof were omitted and the reference to the Montreal Convention and articles thereof were references to the Montreal Convention and articles thereof as applied by this Order.

(2) Sections 3, 4, 4A, 6, 11 and 12 of the Act of 1961 shall apply to carriage to which Schedules 2 and 3 to this Order apply as if the references therein to the Convention as amended and the Montreal Convention and articles thereof were omitted and the reference to the Convention and articles thereof were references to the 1955 amended Convention and articles thereof as applied by this Order.

(3) Section 3(1) of the Act of 1962 shall apply to carriage to which Schedules 2 and 3 to this Order apply as if the reference therein to article VI in the Schedule to that Act was a reference to that article as applied by this Order.

Section 8 Gratuitous carriage by the Crown

(1) Subject to paragraph 2, the Acts of 1961 and 1962, and this Order, shall apply to gratuitous carriage by the Crown as they apply to carriage by the Crown for reward.

(2) The Acts of 1961 and 1962, and this Order, shall not apply to gratuitous carriage by the Crown where that carriage is carriage of members of Her Majesty’s naval, military or air forces undertaken during a time of actual or imminent hostilities or of severe international tension or of great national emergency.

Section 9 Revocation

The Orders specified in Schedule 4 are hereby revoked.

Section 1 Article 1—Scope of Application

This Schedule applies to all 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 1 Article 2—Carriage Performed by State and Carriage of Postal Items

This Schedule 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 1 Article 17—Death and Injury of Passengers—Damage to Baggage

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 1 Article 18—Damage to Cargo

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 1 Article 21—Compensation in Case of Death or Injury of Passengers

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 1 Article 22—Limits of Liability in Relation to Delay, Baggage and Cargo

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 1 Article 23—Conversion of Monetary Units

The sums mentioned in terms of Special Drawing Right in this Schedule 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 judgement.

Section 1 Article 30—Servants, Agents—Aggregation of Claims

If an action is brought against a servant or agent of the carrier arising out of damage to which the Schedule 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 Schedule.

Section 1 Article 31—Timely Notice of Complaints

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.

Section 1 Article 34—Arbitration

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 Schedule shall be settled by arbitration. Such agreement shall be in writing.

Section 1 Article 35—Limitation of Actions

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

Section 1 Article 36—Successive Carriage

In the case of carriage to be performed by various successive carriers, each carrier which accepts passengers, baggage or cargo is subject to the rules set out in this Schedule 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 1 Article 38—Combined Carriage

In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Schedule shall, subject to 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 1 Article 41—Mutual Liability

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 Article 2—Carriage Performed by State and Carriage of Postal Items

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 2 Article 17—Death and Injury of Passengers—Damage to Baggage

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 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 2 Article 18—Damage to Cargo

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 2 Article 21—Compensation in Case of Death or Injury of Passengers

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 ommission of a third party.

Section 2 Article 22—Limits of Liability in Relation to Delay, Baggage and Cargo

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 2 Article 23—Conversion of Monetary Units

The value on a particular day of one Special Drawing Right shall be treated as equal to such a sum in sterling as the International Monetary Fund have fixed as being the equivalent of one Special Drawing Right—

(a) for that day; or

(b) if no sum has been fixed for that day, for the last day before that day for which a sum has been so fixed.

Section 2 Article 30—Servants, Agents—Aggregation of Claims

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

Section 2 Article 31—Timely Notice of Complaints

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 2 Article 35—Limitation of Actions

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

Section 2 Article 36—Successive Carriage

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 2 Article 38—Combined Carriage

Nothing in this Schedule 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 Schedule are observed as regards the carriage by air.

Section 2 Article 41—Mutual Liability

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 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 Schedule or any waiver of rights or defences conferred by this Schedule 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.

Section 3

Except as provided in paragraph 2 of this Article, the provisions of this Schedule shall not apply to the carriage of postal items.

Section 3 Article 3—Passengers and Baggage

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

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 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 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 3

A certificate given by or on behalf of the Treasury stating—

(a) that a particular sum in sterling has been fixed by the International Monetary Fund as referred to in paragraph 2 for a particular day; or

(b) that no sum has been so fixed for a particular day and that a particular sum in sterling has been so fixed for a day which is the last day for which a sum has been so fixed before the particular day,

shall be conclusive evidence of those matters for the purposes of this article; and a document purporting to be such a certificate shall in any proceedings be received in evidence and, unless the contrary is proved, be deemed to be such a certificate.

Section 3

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.

Section 3

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

Section 3 Article 34—Arbitration

The arbitrator or arbitration tribunal shall apply the provisions of this Schedule.

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.

Section 4 Article 1—Scope of Application

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

Section 4

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

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 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. 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.

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 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.