CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR, MONTREAL 1999 MS N MSOMI 3 MAY 2006

CONTENTS PURPOSE BACKGROUND PROBLEM STATEMENT MONTREAL CONVENTION LIABILITY FOR PAYMENTS CONSULTATION CONCLUSION & RECOMMENDATION

PURPOSE To request for South Africa to accede to the Convention for the Unification of Certain Rules for International Carriage by Air, 1999. This Convention is also known as the Montreal Convention, 1999

BACKGROUND The Carriage by Air Act, (Act no.17 of (1946), was promulgated to give effect to the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929 This Convention is also known as the Warsaw Convention, 1929

BACKGROUND (Continued) Hague Protocol of 1955 Warsaw Convention as amended = Warsaw System Guatemala City Protocol of 1971 Montreal Protocols 1 – 4 of 1975

PROBLEM STATEMENT THE WARSAW CONVENTION THE MONTREAL CONVENTION The high mobility of passengers and the globalization of the Air transport Industry has resulted in a high level of complexity and fragmentation of the Warsaw System Modernized the 70 yr old system into one legal instrument that provides adequate levels of compensation for those involved in air accidents.

PROBLEM STATEMENT (continued) THE WARSAW CONVENTION THE MONTREAL CONVENTION Compensation set at very low levels Sets reasonable levels of compensation and introduces concept of strict liability and unlimited liability in case of proven negligence of airline To be reviewed at 5-year intervals

MONTREAL CONVENTION, 1999 Warsaw Convention Montreal Convention The Warsaw convention had set a limit of 125, 000 gold francs approximately (US $ 8,300) in case of death or injury to passengers Introduces a two tier system: First tier includes strict liability up to 100 000 Special Drawings Rights (SDR) ( approximately US $ 135 000 irrespective of a carrier’s fault Second tier is based on presumption of fault of a carrier and has no limit of liability

MONTREAL CONVENTION, 1999 (continued) Warsaw Convention Montreal Convention Complicated, time consuming system for recovery of losses due to fragmented legal instruments of the Warsaw System Facilitates recovery of damages without the need for lengthy litigation and simplification and modernization or documentation related to passengers, baggage and cargo

MONTREAL CONVENTION, 1999 (continued) Warsaw Convention Montreal Convention No provision for passengers to lodge claims for losses in their country of permanent residence An aggrieved party has an option of bringing a claim – in their country of permanent residence (subject to certain limitations) before the court of the domicile of the carrier or its principal place of business; or before the court at the place of destination

LIABILITY FOR PAYMENTS In terms of Article 50 of the Montreal Convention, air carriers are required to maintain adequate insurance covering their liability under this Convention. Government is, therefore, not liable for any damages that might accrue as a result of any international air accidents. Financial impact on SA airlines will be limited as most airlines are already insured in accordance with the Montreal Convention due to the requirements of States that have already adopted the Convention

CONSULTATION Chief State Law Advisors and Aviation Industry were consulted prior to the signing of Montreal Convention on 28 May 1999. Workgroup and Steering Committee responsible for the Aviation Policy Review Project considered implications of the Montreal Convention and recommended its ratification as a priority. Organizations consulted during policy review include: Government Departments / Agencies: DTI, DEAT, DPE, DFA, CAA, ACSA, ATNS, Competition Commission Industry: AASA, CAASA, Aeroclub, SAA, Comair, Interair, Insurance Industry

CONSULTATION (continued) The Chief State Law Advisers indicated that provisions of the Convention are compatible with SA’s international obligations. The Carriage by Air Act Amendment Bill, which incorporates the Convention as a schedule, was published for public comments in the Government Gazette No 26602 dated July 2004. Members of the public were invited to submit written comments by no later than 31 August 2004. Comments were received from Comair, and subsequently clarified.

CONCLUSION AND RECOMMENDATION The Montreal Convention seeks to consolidate and modernise the rules for international carriage by air by replacing the outdated Warsaw System. It is therefore recommended that the Montreal Convention be ratified by Parliament in accordance with Section 231(2) of the Constitution.