Home Content Chapter 3 Draft Convention
on Aerial Collisions
Prepared by the ICAO Legal Committee, Signed on 18 September 1964Article 1
1. The provisions of this Convention apply when damage contemplated by the Convention results from a collision or interference between two or more aircraft in flight:
(a) if the collision or interference occurs in the territory of a Contracting State and at least one of the aircraft involved is registered in another Contracting State, or
(b) if two or more of the aircraft involved are registered in different Contracting States, irrespec-tive of where the collision or interference occurs.
2. An aircraft is deemed to be in flight from the moment when power is applied for the purpose of take-off until the moment when the landing run ends. In the case of an aircraft lighter than air, the expression “in flight” relates to the period from the moment when it becomes detached from the surface until it becomes again attached thereto.
3. For the purposes of this Convention, the State aircraft of a State shall be deemed to be registered in that State.
Article 2
1. Liability for the damage contemplated in this Convention shall, subject to the provisions of the following articles, attach to the operator.
2. For the purposes of this Convention the term “operator” shall mean the person who was making use of the aircraft at the time the damage was caused, provided that if control of the navigation of the aircraft was retained by the person from whom the right to make use of the aircraft was derived, whether directly or indirectly, that person shall be considered the operator. A person shall be considered to be making use of an aircraft when he is using it personally or when his servants or agents are using the aircraft in the course of their employment, whether or not within the scope of their authority.
Article 3
Except in the case of recourse actions between the operator of an aircraft, his servants or agents, and the operator of another aircraft, his servants or agents, this Convention shall not apply to the liability of an operator, his servants or agents, in respect of persons or property on board his aircraft or of persons or property on the surface.
Article 4
The operator of each of the aircraft involved shall, if it is proved that a collision or interference was caused by his fault, be liable:
(a) for destruction, loss, damage or delay caused to, or loss of use of, any of the other aircraft including the equipment or accessories thereof;
(b) for destruction, loss, damage or delay caused to, or loss of use of any other property on board such other aircraft except property specified in Article 5;
(c) for death, injury or delay caused to persons on board such other aircraft other than the persons specified in Article 5.
Article 5
1. The operator of each of the aircraft involved in a collision or interference shall be liable:
(a) for death, injury or delay caused to persons carried under an agreement for carriage on board any of the other aircraft.
(b) for destruction, loss, damage or delay caused to, or loss of use of, property carried under an agreement for carriage on board such other aircraft.
2. The operator shall not be liable for damage contemplated in the preceding paragraph 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 6
If the operator proves, in an action brought against him by a person who is not the operator of one of the aircraft involved, that the damage was caused, or contributed to, by the fault of the person who suffered the damage or of his servants or agents, or of the person whose death or injury gave rise to the action or of his servants or agents, the Court shall, if its law so permits, and in accordance with the provisions of such law, exonerate the operator wholly or partly from his liability.
Article 7
1. If the collision or interference was caused by the fault of more than one operator, compensation for damage contemplated in Article 4 shall be borne by such operators in proportion to the degrees of fault respectively committed, and if the respective degrees of fault cannot be ascertained then the damage shall be shared equally between the operators involved.
2. If a collision or interference gives rise to liability under this Convention or under any other legal rules of two or more of the operators of the aircraft involved for damage other than damage contemplated in Article 4, the liability for such damage shall, subject to the provisions of Article 8, as between the operators liable, be borne in proportion to the degrees of fault respectively committed, or, if the degree of fault cannot be ascertained, in equal parts, or if none of the operators has been proved to have been at fault, in proportion to the weight of the respective aircraft.
3. “Weight” means the maximum weight of the aircraft for take-off, excluding the effect of lifting gas when used, authorized by appropriate authority of a Contracting State and evidenced
(i) by the certificate of airworthiness, in the case of an aircraft for which such certificate is required;
(ii) by any other valid means of proof, in the case of an aircraft which is permitted by such authority to fly without a certificate of airworthiness.
Article 8
Notwithstanding the provisions of Article 7, an operator shall not be liable in any action in recourse by another operator or by any other person for the payment of any sum which would result in his liability exceeding any applicable limits of liability under this Convention or any other international convention or depriving him of any defence or benefit which he would be entitled to invoke under such conventions in respect to persons or property on the surface or carried on his aircraft.
Article 9
For the purposes of this Convention, the fault of an operator includes the fault of his servants or agents acting in the course of their employment, whether or not within the scope of their authority.
Article 10
1. Subject to the provisions of Articles 8 and 11, the liability of the operator of an aircraft involved in a collision or interference shall, with respect to damage caused to another aircraft or to persons or property on board thereon, be subject to the following limits:
(a) for destruction, loss of or damage to that aircraft including the equipment and accessories thereof or to any property thereon other than property specified in Article 5: the value at the time of the collision or interference or the cost of repairs or replacement, whichever is the least;
(b) for delay caused to, or loss of use of, that aircraft or the equipment or accessories thereof or the other property to which subparagraph (a) above applies: 10% of their respective values as determined under subparagraph (a);
(c) for death, injury or delay caused to a person on board carried under an agreement for carriage: 250,000 francs for each such person;
(d) for destruction, loss, damage or delay caused to, or loss of use of, all the objects which a person on board carried under an agreement for carriage had in his charge: 5,000 francs per person;
(e) for destruction, loss, damage or delay caused to, or loss of use of, any other property on board the aircraft if such property is carried under an agreement for carriage: 250 francs per kilogram.
2. The sums mentioned in francs in this Article shall be deemed to refer to a currency unit consisting of 65-1/2 milligrammes of gold of millesimal fineness 900. 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 11
The limits of liability provided in the preceding Article shall not apply:
(a) if it is proved that the damage resulted from an act or omission of the operator, his agents or servants, 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 an agent or servant, it is also proved that he was acting in the course of his employment, whether or not within the scope of his authority; or
(b) if the person liable has wrongfully taken and made use of the aircraft without the consent of a person entitled to permit its use.
Article 12
1. If any action arising out of damage to which this Convention relates is brought against a servant or agent of an operator or a servant or agent of the owner of an aircraft, such servant or agent, if he proves that he acted in the course of his employment, shall not be liable except upon proof of fault and shall also be entitled to avail himself of all the provisions of this Convention which are applicable to the operator himself.
2. If any action arising out of damage to which this Convention applies is brought against the owner of the aircraft who is not also its operator, he shall not be liable except upon proof of fault, and shall be entitled to avail himself of all the provisions of this Convention which are applicable to the operator.
Article 13
1. The aggregate liability of the operator and any liability of the owner of any one aircraft and their respective servants and agents for damage contemplated in this Convention shall not, except as provided in Article 11, exceed the respective limits prescribed in paragraph 1 of Article 10.
2. Except as provided in Article 11, a claimant may not recover more than the maximum amounts specified in paragraph 1 of Article 10 in the cases therein referred to, regardless of whether the claim is brought against one or more of the operators or owners liable or their servants or agents.
3. The Court trying the case may require the claimant to provide such guarantees for ensuring observance of the provisions of this Article as the Court may consider necessary.
Article 14
Actions under the provisions of this Convention must be brought, at the option of the plaintiff, before a competent court of any Contracting State in which the collision or interference occurred or in which the defendant has his domicile or principal place of business.
Article 15
1. Actions under this Convention shall be subject to a period of limitation of two years from the date of the incident which caused the damage.
2. The grounds for suspension or interruption of the period referred to in this Article shall be determined by the law of the Court trying the action; but in any case the right to institute an action shall be extinguished on the expiration of three years from the date of the incident which caused the damage.
3. In the case of actions in recourse, the period provided for in paragraphs 1 and 2 shall be prolonged so as to allow to any person desiring to exercise his right of recourse a period of six months in which to do so, reckoned from the date of the final judgment rendered or the final settlement made with respect to his liability under the original claim.
Article 16
1. Any State may at the time of its ratification of or adherence to this Convention make the following reservations or any of them:
(a) that this Convention shall not apply to all or specified classes of its State aircraft,
(b) that an action with respect to damage caused by all or specified classes of its State aircraft shall be subject only to the jurisdiction of its own courts.
2. Any State making a reservation as aforesaid may at any time withdraw it in whole or in part.
3. For the purposes of this Article , aircraft used in military, customs and police services shall be deemed to be State aircraft.
4. Aircraft which are engaged in the carriage of passengers, cargo or mail for remuneration or hire, other than those being used exclusively for governmental purposes, shall not be deemed to be State aircraft.
Article 17
Contracting States will, as far as possible, facilitate payment of compensation under provisions of this Convention in the currency of the State of residence of the claimant if he so desires.
Article 18
If legislative measures are necessary in any Contracting State to give effect to this Convention, the Secretary General of the International Civil Aviation Organization shall be informed forthwith of the measures so taken.
Article 19
Nothing in this Convention shall affect any of the provisions of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, done at Warsaw on 12 October 1929 or of the Protocol to amend the said Convention, done at The Hague on 28 September 1955, or 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, done at Guadalajara on 18 September 1961, or of the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, done at Rome on 7 October 1952, in a case where any of these instruments is applicalbe.
Article 20
In the event of the death of the person liable, an action in respect of liability under the provisions of this Convention shall lie against those legally responsible for his obligations.
Article 21
If Contracting States establish joint air transport operating organizations or international operating agencies which operate aircraft not registered in any one State, such aircraft shall, for the purposes of this Convention, be deemed to be registered in any one of the said States. However, if an aircraft of the organization or agency is involved in a collision or interference occurring in the territory of one of such Contracting States, that aircraft shall be deemed, for the purposes of this Convention, to be registered in that State.
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