Home Content Chapter 3 PRELIMINARY DRAFT — INTERNATIONAL CONVENTION
ON THE LIABILITY OF AIR TRAFFIC CONTROL AGENCIES
submitted by the Republic of Argentina to the 25th Session
of the ICAO Legal Committee (Montreal, April 12-27, 1983)
THE SIGNATORY GOVERNMENTS
WHEREAS:
The majority of Member States of the International Civil Aviation Organization have expressed their views that international rules should be agreed upon to establish uniform liability of air traffic control agencies;
The unification of rules on this question must be related to the principles included in other international law conventions, which have deserved the adherence of a large number of countries;
The development of international airports and the increase in the number of aeroplanes operating from them, many of which are wide-body jets and some of which are SST aircraft, is such that the activity of air traffic control agencies is of greater importance than at other periods in the development of aviation;
It is essential that a large number of countries support the unification of rules concerning the activity referred to in the foregoing paragraph.
HAVE agreed as follows:
CHAPTER I
BASIC CONCEPT AND APPLICATIONBasic concept
Article 11) For the purposes of this Convention, an “air traffic control agency” shall be understood to be an agency specially set up by States or authorized by them to provide services for the protection and regulation of flights; Services included
2) Services for the protection and regulation of flights shall include those relating to air traffic control, area control, approach control, aerodrome control, air traffic advisory service, aeronautical information and alerting services, including collaboration in aircraft search, assistance and rescue;
Other services included3) If the services provided by the agencies referred to in subparagraph 1) include the provision of meteorological services, airport facilities, aeronautical charts and other air navigation supporting services and facilities, these services shall be considered to be included in the description given in the preceding subparagraph.
Objectives
Article 21) The Air Traffic Control Agencies (ATCA) referred to in this Convention shall have the purposes of:
a) Avoiding collisions between aircraft;
b) Avoiding collisions between aircraft and obstacles in the manoeuvring area;
c) Regulating and appropriately accelerating the movement of aircraft;
d) Giving information useful for flight safety and efficiency;
e) Notifying the appropriate agencies regarding aircraft requiring assistance and provision of the said services to the extent possible.
Laws applicable. Requests for service.
2) The ATCA shall provide their service in accordance with the relevant laws and regulations laid down by each country, in accordance with the Chicago Convention of 1944 and the Annexes thereto and as requested by aircraft commanders or other air traffic agencies or other authorities or technical bodies in the cases referred to in the preceding subparagraph.
Scope of the Convention
Article 31) The present Convention shall apply to damages resulting in the following circumstances:
a) When an aircraft performs an international flight and is within the territory of a Contracting State other than the country of its flag and under the control of an ATCA of that other State or of another Contracting State;
b) When an aircraft performs an international flight and is within the territory of a Contracting State other than the country of its flag, but under control of an ATCA of its own country, and has caused damage in the other Contracting State;
c) When an aircraft makes an international flight and is within the territory of a Non-Contracting State, under the control of an ATCA of a Contracting State other than that of its flag;
d) When an aircraft makes a flight between two points of the country of its flag but under the control of an ATCA of another Contracting State.
Unlawful user
2) Likewise, the Convention shall apply when the aircraft referred to in the preceding subparagraph is in flight, on the ground, moving or at a standstill, provided it is under the control of an ATCA or even when it is being controlled by an unlawful user.
Damage included
Article 41) The present Convention shall apply to damage caused by aircraft; to persons, cargo, baggage and mail carried by them; to persons and objects on the surface.
Damage excluded
2) It shall, however, in no case apply to damage caused by delay in the transport, or to damage caused by abnormal noise or sonic boom, or to damage caused by the transmission of messages which have produced interference with other electronic or telegraphic facilities or any other facilities, on the surface.
Aircraft to which the Convention applies
Article 5This Convention shall apply equally to the following aircraft, even when they are on experimental or test flights:
a) Military, customs, police and other State aircraft exercising public functions, without prejudice to the reservation authorized in Article 42, sub-paragraph 3;
b) Commercial, civil, tourist and sports aircraft, even when operated by States or by joint air transport agencies or by international consortia as provided for in Article 77 of the Chicago Convention.
c) Aircraft operated by international public law bodies.
ATCA included
Article 61) The ATCA included in this Convention shall be subject to the same liability, whether they belong to the State or to local governmental authorities and are operated by military or civil authorities, or to private individuals, whether natural or legal persons, or to mixed associations comprising governmental authorities and private persons.
International or multinational ATCA
2) The same liability shall also apply, with the scope laid down in the preceding subparagraph, to ATCA operated by agencies formed by various coun-tries or by agencies authorized by various countries.
ATCA operated by ICAO
3) If the ATCA is operated by ICAO as provided for in Article 71 of the Chicago Convention, the State where the services are provided shall assume liability for the damage provided for in the present Convention.
CHAPTER II
SYSTEM OF LIABILITYCulpable liability of the ATCA
Article 71) The ATCA shall be liable for fault on the part of their officers, employees and agents, for damage to aircraft, persons, objects and postal cargo carried by aircraft and for damage to third parties and to objects on the surface, within the system established in the present Convention;
ATCA, exemption from liability
2) Nevertheless, the ATCA shall not be liable if the damage occurred fortuitously or as a result of force majeure, through the action of a third party, through fault of the victim or inaccurate information from another agency, which the ATCA only trans-mitted, and provided that the ATCA proves that it took every possible measure to avoid the damage or that it was impossible to take such measures;
ATCA, contributory liability
3) If the damage results from contributory fault on the part of the victim and employees of the ATCA or of the victim, the employees of the ATCA and the operator (or operators) of the aircraft involved in the damage, or of employees of the ATCA and of the operator or operators referred to, the liability shall be shared in proportion to the gravity of the fault of each, in accordance with conventional or judicial decision and assessment.
State ATCA, no immunity
4) No exemption may be based on the immunity of an ATCA because it belongs to a State.
Fault, scope of the concept
5) The expression “fault”, used in the present Convention, shall include error, negligence, lack of skill and criminal intent.
Fault, presumption through failure
Article 81) If the victims or the operator or operators prove that the damage resulted from failure of the electronic equipment and/or automatic communications machinery, there shall be presumption of fault against the ATCA, which will be obliged to show that its officers, employees and agents took all regulatory and possible steps to avoid the failure.
Fault, presumption through failure to present documents
2) There shall also be a presumption of fault against the ATCA when, for reasons of national defence or other reasons, the Agency fails to present the files or registers containing records of messages exchanged between its officers, employees and agents, and the aircraft commanders, other ATCA and other Agencies with which they were exchanged.
Aircraft commander, compliance with orders from the ATCA
Article 9Without prejudice to the responsibility of the aircraft commander as flight chief or director throughout the operation, aircraft commanders must comply with orders received from ATCA in accordance with the purposes specified in Article 2, which they may disregard only in the event of danger, immediately reporting this circumstance to the air traffic service units.
Liability, for damage to persons and objects
Article 101) If a claim is made against the ATCA for damage affecting a passenger or the passenger’s baggage or damage to the cargo, the person suffering the damage may claim compensation for the damage suffered to the extent of the amount indicated in the Convention for the Unification of Certain Rules relating to International Carriage by Air (Warsaw Convention);
Liability of a non-contractual carrier
2) The provisions of the preceding subparagraph shall also apply if the carrier who performed the carriage was not the contractual carrier, in accordance with the provisions of the relevant International Convention;
Liability for damage to postal cargo
3) If a claim is made against the ATCA for damage to postal cargo, the injured party may claim compen-sation for the damage suffered, up to the respective amount indicated in the International Convention of the Universal Postal Union.
Liability for damage on surface
Article 11If a claim is made against the ATCA for damage to persons or goods on the surface, the injured party may claim compensation for the damage suffered up to the amount or amounts indicated in the International Convention on Liability of the Operator in respect of persons and objects on the surface, without prejudice to the provisions of Article 19.
Liability for damage resulting from collision
Article 121) If a claim is made against the ATCA for damage to the aircraft, persons and goods as a result of collision between two or more aircraft, the injured party may claim compensation for the damage suffered up to the amount or amounts indicated in the International Convention on liability of the operator in the event of collision;
Prorata in cases of collision
2) If the amount of compensation fixed in accordance with the preceding subparagraph exceeds the limit of liability of the ATCA, the procedure followed shall be as indicated in Article 19.
Burden of proof lies with the injured party
Article 131) The claimant shall be required to present and produce evidence of fault on the part of the ATCA and of the relationship between the said Agency and the damage suffered, except in the cases provided for in Article 8.
Applicable procedural law
2) The rendering of the judgement and production of proof are governed by the law of the country where the proceedings were brought or where they were continued in the event of a change of jurisdiction.
Documents, retention of
3) The files and documents containing records of messages exchanged between parties, relating to the protection and regulation of the flight, must be retained for a period of three years. But for this to be done, the injured party or his beneficiaries must request it of the ATCA in writing within a period of six months from the date of occurrence of the damage, otherwise the entitlement will expire.
Aircraft accident, conclusions of investigation as proof
4) The conclusions of an aircraft accident investigation, reached by the competent authority of one of the Contracting States, by virtue of the provisions of Article 26 of the Chicago Convention, shall be taken into account as proof, without prejudice to the provisions of subparagraph 2 of the present Article.
CHAPTER III
LIMITATION OF LIABILITYCompensation, limitation of
Article 141) The liability of ATCA, established in the present Convention, shall be limited to the amount laid down for liability of the aircraft operator in the Conventions specified in Articles 10, 11 and 12, as the case may be.
Shared liability; Judicial action
2) If the liability is to be shared between the ATCA and the operator, the victim may claim from each of them to the extent of the limit laid down in the preceding subparagraph, but in no case may he claim an amount greater than the sum corresponding to the damage suffered and duly substantiated together with court costs and interest, from the date the action was brought.
Compensation, increased limits
Article 15No clause of the present Convention shall be interpreted as preventing a State from increasing the limits of liability of its ATCA, beyond the amount laid down in the preceding Article including autho-rization of full compensation for the damage caused.
Criminal intent, wilful omission. Reckless action
Article 161) Liability of ATCA shall extend to full compen-sation of the damage to the victim, if the officials, employees and/or agents of the Agency, acting within their functions and within the sphere of their duties, performed the criminal actions or omissions with intent to cause the damage, or performed the reckless actions which caused the damage without taking into account their consequences.
Compensation, claim
2) ATCA may claim from their officials, employees or agents having caused the damage the amounts they shall have paid in compensation for the damage, and take out insurance covering such risk.
Full compensation for damage to aircraft
Article 17Likewise, compensation for damage to aircraft, if not included in the Conventions referred to in Articles 10, 11 and 12 shall cover full compensation for losses incurred by the operator in this connexion.
Currency
Article 181) Compensation for damage referred to in this Convention shall be calculated in the currency laid down in the Conventions referred to in Articles 10, 11 and 12.
Current conversion
2) The amount resulting therefrom shall be converted into the currency of the country where the judgement was rendered or in a currency agreed upon by the parties in the event of this not being specified in the judgement, on the date of effective payment.
Prorata for third parties on the surface
Article 19If damage was caused to third parties on the surface and if the amount of compensation fixed exceeds the limit of liability, as provided for in Article 11, the following rule shall be observed:
a) If the compensation relates solely to death of, or injury to, persons or solely to damage to property, it shall be reduced in proportion to the respective amounts of the compensation;
b) If the compensation relates both to death or injury and to damage to property, half of the amount to be distributed shall be allotted to cover compen-sation for death and injury, and if the said amount is insufficient, it shall be distributed proportionally among those to whom it was awarded in the case. The remainder of the total amount to be distributed shall be prorated between the compensation for damage to property and the part of the remaining compensation that is not covered.
CHAPTER IV
JURISDICTION AND APPLICABLE LAWJudicial action of the injured party
Article 201) Any person who has suffered damage as provided for in this Convention, whether to his person or his property or his beneficiaries, is entitled to bring judicial action to obtain compensation for the damage incurred.
Judicial action for damage to postal cargo
2) In the case of damage to postal cargo, the action shall comply with the procedures for the carriage of mail, as laid down in the Convention of the Universal Postal Union.
Judicial action v. ATCA or v. operator
Article 211) The injured party may bring the action directly against the ATCA he considers liable or against the operator in accordance with the provisions of the Conventions referred to in Articles 10, 11 and 12.
Judicial action of the operator
Recourse by the operator2) An operator who has incurred damage through death or injury to his personnel or damage to his aircraft or other property, may bring action directly against the ATCA he considers responsible, and may also bring a recourse action against the ATCA for payment made to other persons as stated in the preceding subparagraph.
Judicial action to obtain full compensation
Article 22If the injured party or his beneficiaries has brought an action against the operator and has not received compensation for the damage incurred within the limit of the latter’s liability, they may bring a further action against the ATCA they consider responsible, within the same limits, submitting proof of the amount of damage incurred.
Competence
Article 231) Actions brought by the injured party in accordance with the provisions of the present Convention shall be brought before the courts of the country in which the ATCA whose activity was a prima facie cause of the damage has its offices, even when the aircraft was flying in another country at the time of the accident.
Competence in cases brought against a multinational ATCA
2) If the ATCA is a multinational agency, the judicial proceedings shall be brought in the country where it has its main office according to its statutes but likewise the claimant may bring the case before the judicial authorities of the territory of the Member State of the agency, where the damage occurred.
Competence in cases brought against an ATCA and an operator
3) If the claimant brings the case against the ATCA and operator jointly, he must follow the procedures outlined in the preceding subparagraphs.
Overriding jurisdiction
4) If some of the claimants bring the case against the ATCA and others against the operator in different jurisdictions, the case brought against the ATCA shall decide the overriding jurisdiction with regard to the other cases.
Priority
Article 24The Conventions and laws shall be applied in accordance with the following priorities:
a) The present Convention;
b) Such aeronautical convention as the parties may invoke in accordance with the provisions of Articles 10, 11 and 12;
c) The internal law of the country where the ATCA against which the claim is brought has its offices.
Judicial action against defunct ACTA or ATCA
that have merged with other ATCA
Article 25If the ATCA responsible is a natural person, in the event of that person’s death, the actions for damages may be brought against his beneficiaries; if it is a private legal person and has merged with other agencies or has become another agency, the action may be brought against the new, succeeding body.
Judicial action against an International
or multinational ATCA that is defunct2) If the ATCA responsible is a private international or multinational body and has been dissolved, the suit for damages may be brought against those States which authorized it to operate, without distinction.
CHAPTER V
PRESCRIPTIONPrescription concerning direct action by
the injured party
Article 261) Direct action for compensation for the victim or his beneficiaries or for the operator shall be prescribed after a limit of two years from the date when the event which gave rise to the damage occurred.
Prescription for compensation claim
2) A recourse action claiming compensation by the operator against the ATCA for payment made to the victim or his beneficiaries, shall be prescribed after a limit of two years from the date of effective payment, whether it be the consequence of the definitive award or of agreement between the parties.
Prescription for action for balance of compensation
3) Action by the victim or his beneficiaries against the ATCA they consider responsible, for the balance of the original claim against the operator which has not been met, shall be prescribed on expiry of one year dating from the date on which insolvency of the operator with regard to the credit was established.
Suspension or temporary cessation of prescription.
Law applicable4) The reasons for suspension or temporary cessation or prescription shall be those determined by the law of the court which hears the case.
CHAPTER VI
GUARANTEESGuarantees, procedures
Article 27Payment of compensation under the provisions of the present Convention shall be guaranteed by the ATCA with their property and shall follow any one of the procedures stated below:
a) Through a subsidiary guarantee of a Contracting State;
b) Through endorsement by a bank of recognized solvency or of another institution authorized by one or more Contracting States;
c) Through insurance with an insurance company authorized by the Contracting State and suitable for the type of insurance involved.
Guarantees, exception for State ATCA
Article 28If the operator of the ATCA is a State body and provides the services directly, it shall be exempt from the provisions of the preceding Article. But if this is not the case, the State shall take the necessary steps to ensure that the guarantees provided for in this Chapter are genuine and effective.
Guarantees, multinational ATCA
Article 29If the operator of the ATCA is a multinational body, the payment of any compensation shall be guaranteed by the States which authorized it in accordance with its statutes, but they may either decide that a particular State shall provide the guarantee or adopt one of the solutions in Article 27.
CHAPTER VII
MISCELLANEOUS CLAUSESInternational aeronautical activities, safety
Article 30The Contracting Parties undertake to apply as a minimum requirement for the safety of international aeronautical activities, the “Standards and Recom-mended Practices” for the protection of air transport contained in the Annexes to the Convention on International Civil Aviation.
Clauses, invalidity
Article 31All clauses prior to the occurrence of the damage provided for in the present Convention, which are contrary to the rules of the present Convention, shall be invalid. Likewise, any clause tending to exempt an ATCA from liability or to set for such liability a limit less than that set in the present Convention shall be invalid and of no effect.
Days
Article 321) For the periods mentioned in the present Convention defined in days, it should be understood that these are calendar days and not working days and they start on the calendar day following the event under consideration.
Months and years
2) Periods in months or years shall end on the same day as when they started, after expiry of the number of months or years laid down in the present Convention.
Liability of the ATCA,
beginning and end
Article 33The liability of the ATCA shall begin when it takes or ought to take the aircraft under its protection or control and ends when it transfers them to another ATCA in respect of the same aircraft.
Claim for compensation,
entitlement of the ATCA
Article 341) None of the rules of the present Convention shall prejudice the fact as to whether or not the ATCA responsible shall be entitled to claim compensation against any other natural or legal person, in respect of payments to the injured party, even if he was an unlawful user, for any of the damage provided for herein.
Unlawful user, concept
2) For the purposes of this Convention, the term “unlawful user” refers to whoever has the aircraft in his possession without authorization from the owner or from whoever has the exclusive right to use it if he has conferred this right on another person.
ICAO, intervention
Article 35If any disagreement arises between two or more Contracting States on the interpretation or application of the present Convention, which cannot be settled by direct negotiation, the procedure to be followed shall be that established in Articles 84 to 88 of the 1944 Chicago Convention, without prejudice to the provisions of Article 42, subparagraph 3 of the present Convention.
Court of Arbitration
Article 361) The injured party or parties, the operators and the ATCA may submit a difference on which no agreement has been reached to a Court of Arbitration.
Arbitration, agreements, formalities
2) The arbitration agreement must be recorded in public document before a notary or court clerk of the jurisdiction indicated in Article 23 and shall establish the rules of the Court of Arbitration. These rules may not be contrary to the specific legislation of the country where the arbitration procedure is to take place.
Evidence to be used
3) The Court of Arbitration may use all forms of evidence accepted in the specific legislation indicated, which shall govern any solution not provided for in the rules, including the fees of the arbitrators.
Fees. Arbitration award, enforcement
4) The final decision on a difference may be sub-mitted also to a natural or legal person, either national, international or interline, but the enforcement of the award shall, where necessary be performed in the country indicated in Article 23 of the present Con-vention.
CHAPTER VIII
DIPLOMATIC CLAUSESLanguages
Article 371) The present Convention shall be drawn up in English, French, Spanish and Russian and the four versions shall be equally authentic. In the event of divergency between any of the versions, the procedure laid down in the 1944 Chicago Convention, Article 84 shall be followed.
Deposit of the original document
2) The original document shall be deposited at the Ministry of External Relations of the State whose Government shall transmit a certified copy thereof in the appropriate language to each of the Member States of the International Civil Aviation Organization.
Copies of the Convention
3) Likewise the Government shall transmit a certified copy of the original document to the United Nations and to the International Civil Aviation Orga-nization.
Ratification
Article 381) The present Convention shall be ratified by those States which wish to apply it. The instruments of ratification shall be registered with the International Civil Aviation Organization as laid down in Article 83 of the 1944 Chicago Convention. ICAO shall communicate the register to each Member State, both to those which have not yet ratified the Convention and to those States which are signatories thereof.
Entry into force
2) The present Convention shall enter into force ninety days following the date of the deposit of the instrument of ratification by twenty States. Sub-sequently it shall enter into force between the other States which ratify it and those which have already ratified it, ninety days following the date of deposit of each instrument of ratification.
ICAO, communication of entry into force
3) The International Civil Aviation Organization shall inform each Member State of the entry into force of the present Convention.
Denunciation
Article 391) Any Contracting State may denounce the present Convention, by notification to the Council of the International Civil Aviation Organization, which shall immediately inform the Government of each Contracting State thereof.
Effect of the denunciation
2) The denunciation shall take effect six months following the date on which the Council of ICAO is notified and shall operate only as regards the State effecting the denunciation.
Communication of denunciation
3) On expiry of the period indicated in the preceding subparagraph, the Council of ICAO shall inform the General Secretariate of the United Nations of the denunciation.
Convention, geographical scope
Article 401) The present Convention shall apply to all territories for whose external and aeronautical relations a Contracting Party is responsible, with the exception of those territories for which a declaration has been made in accordance with the following paragraph.
Convention, territories excepted
2) At the time of deposit of its instrument of ratification or adherence, any State may declare that acceptance of the present Convention does not include one or more of the territories for whose external and aeronautical relations it is responsible.
Convention, territories subsequently included
3) Any State may subsequently, by means of a communication addressed to the Council of ICAO, extend the application of this Convention to any of the territories with respect to which it has made a declaration in accordance with the provisions of the preceding paragraph. Such amendment shall take effect on the ninetieth day from the date of receipt of the communication from the said Government.
Denunciation of the Convention,
with respect to territories4) Any Contracting State may denounce the present Convention in accordance with the denun-ciation clauses, separately with respect to any of the territories indicated in the present Article.
Convention, signature
Article 411) Until such date as the present Convention enters into force, the original document shall remain open to signature by any State which took part in the Conference at which its text was approved.
Convention, adherence
2) After its entry into force, the present Convention shall remain open to adherence by any non-signatory State and to subsequent ratification by that State.
Reservations, exclusion
Article 421) No reservation may be made with respect to the present Convention.
Reservations, with respect to
the International Court of Justice2) Nevertheless, at the time of signature or ratifi-cation of the Convention, any State doing so may declare that it will not submit any controversy in which it may be involved to the Permanent International Court of Justice. However, any Contracting State which has expressed the reservation indicated in this subparagraph may withdraw it at any time, notifying the International Civil Aviation Organization of such withdrawal.
Reservations, with respect to State aircraft
3) Likewise, Contracting States reserve the right to exclude from the scope of the Convention, the liability of its Air Traffic Control Agencies for damage caused by:
a) All or specific classes of State aircraft of other Contracting States.
b) The State aircraft of the Contracting State itself.
Terms, interpretation
Article 43The terms “agreement”. and “convention” used in the foregoing Article have one and the same meaning and scope and refer to the complete text formed by the Articles referred to.
In witness whereof the undersigned plenipo-tentiaries, being duly authorized, have signed the present Convention on behalf of their respective Governments on the date shown with their signatures.
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