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CARRIAGE BY AIR ACT, 1972
69 of 1972
19th December, 1972
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 transhipment, 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 of 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 wilful misconduct of the carrier, or by such default on his part as, in accordance with the law of the Court seized of the case, is equivalent to wilful 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 exceptions, adaptations and modifications, by means of a notification issued in 1964, 3. A diplomatic conference under the auspices of International Civil Aviation Organisation 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 protpctol 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 per passenger: (c) making the carrier liable where the damage was caused by an error in piloting or in the handling of the aircraft 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 travelling 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 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 4of 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, adaptations and modifications. 8. The Bill seeks to give effect to the above objectives. -Gaz. of Ind., 21 -11-1972. Pt, II, S.2, Ext., p. 1148.
An Act to give effect to the Convention for the unification of certain rules relating to international carriage by air signed at Warsaw on the 12th day of October, 1929 and to the said Convention as amended by the Hague Protocol on the 28th day of September, 1955 and to make provision for applying the rules contained in the said Convention in its original form and in the amended form (subject to exceptions, adaptatios and modifications) to noninternational carriage by air and for matters connected therewith. BE it enacted by Parliament in the Twenty-third Year of the Republic of India as follows:-
SECTION 01: SHORT TITLE, EXTENT AND COMMENCEMENT
(1) This Act may be called The Carriage by Air Act, 1972.
(2) It extends to the whole of India.
(3) It shall come into force on such date1as the Central Government may, by notification in the Official Gazette, appoint.
SECTION 02: DEFINITIONS
In this Act, unless the context otherwise requires,-
(i) "amended Convention" means the Convention as amended by the Hague Protocol, on the 28th day of September, 1955;
(ii) "Convention" means the Convention for the unification of certain rules relating to international carriage by air signed at Warsaw on the 12th day of October. 1929.
SECTION 03: APPLICATION OF CONVENTION TO INDIA
(1) The rules contained in the First Schedule being the provisions of the Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees and other persons shall, subject to the provisions of this Act. have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage.
(2) The Central Government may, by notification in the Official Gazette, certify who are the High Contracting Parties to the Convention, in respect of what territories they are parties and to what extent they have availed themselves of the provisions ofrule 36in the First Schedule and any such notification shall be conclusive evidence of the matters certified therein.
(3) Any reference in the First Schedule to the territory of any High Contracting Party to the Convention shall be construed as a reference to all the territories in respect of which he is a party.
(4) Any reference in the Fist Schedule to agents of the carrier shall be construed as including a reference to servants of the carrier.
(5) Every notification issued under sub-section (2) ofsection 2-of the Indian Carriage by Air Act, 1934 and in force immediately before the commencement of this Act shall be deemed to have been issued under sub-section (2) of this section and shall continue to be in force until such notification is superseded.
SECTION 04: APPLICATION OF AMENDED CONVENTION TO INDIA
(1) The rules contained in the Second Schedule, being the provisions of the amended Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees and other persons, shall, subject to the previsions of this Act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage.
(2) The Central Government may, by notification in the Official Gazette, certify who are the High Contracting Parties to the amended Convention and in respect of what territories they are parties, and any such notification shall be conclusive evidence of the matters certified therein.
(3) Any reference in the Second Schedule to the territory of any High Contracting Party to the amended Convention shall be construed as a reference to all the territories in respect of which he is a party.
(4) Any reference in the Second Schedule to agents of the carrier shall be construed as including a reference to servants of the carrier.
SECTION 05: LIABILITY IN CASE OF DEATH
(1) Notwithstanding anything contained in the Fatal Accidents Act, 1855-or any other enactment or rule of law in force in any part of India, the rules contained in the First Schedule and in the Second Schedule shall, in all cases to which those rules apply, determine the liability of a carrier in respect of the death of a passenger.
(2) The liability shall be enforceable for the benefit of such of the members of the passenger's family as sustained damage by reason of his death.
(3) An action to enforce the liability may be brought by the personal representative of the passenger or by any person for whose benefit the liability is under sub-section (2) enforceable, but only one action shall be brought in India in respect of the death of any one passenger, and every such action by whomsoever brought shall be for the benefit of all such persons so entitled as aforesaid as either are domiciled in India or not being domiciled there express a desire to take the benefit of the action.
(4) Subject to the provisions of sub-section (5) the amount recovered in any such action, after deducting any costs not recovered from the defendant, shall be divided between the persons entitled in such proportion as the Court may direct.
(5) The Court before which any such action is brought may, at any stage of the proceedings, make any such order as appears to the Court to be just and equitable in view of the provisions of the First Schedule or of the Second Schedule, as the case may be, limiting the liability of a carrier and of any proceedings which have been or are likely to be commenced outside India in respect of the death of the passenger in question.
SECTION 06: CONVERSION OF FRANCS
Any sum in francs mentioned in rule 22of the First Schedule or of the Second Schedule, as the case may be, shall, for the purpose of any action against a carrier, be converted into rupees at the rate of exchange prevailing on the date on which the amount of damages to be paid by the carrier is ascertained by the Court.
SECTION 07: PROVISIONS REGARDING SUITS AGAINST HIGH CONTRACTING PARTIES WHO UNDERTAKE CARRIAGE BY AIR
(1) Every High Contracting Party to the Convention or the amended Convention, as the case may be, who has not availed himself of the provisions of the Additional Protocol thereto shall, for the purposes of any suit brought in a Court in India in accordance with the provisions of rule 28of the First Schedule, or of the Second Schedule, as the case may be, to enforce a claim in respect of carriage undertaken by him, be deemed to have submitted to the jurisdiction of that Court and to be a person for the purposes of the Code of Civil Procedure, 1908.
(2) The High Court may make rules of procedure providing for all matters which may be expedient to enable such suits to be instituted and carried on.
(3) Nothing in this section shall authorise any Court to attach or sell any property of a High Contracting Party to the Convention or to the amended Convention.
SECTION 08: APPLICATION OF ACT TO CARRIAGE BY AIR WHICH IS NOT INTERNATIONAL
(1) The Central Government may, by notification in the Official Gazette, apply the rules contained in First Schedule and any provision of section 3-orsection 5-orsection 6-to such carriage by air, not being international carriage by air as defined in the First Schedule, as may be specified in the notification, subject, however, to such exceptions, adaptations and modifications, if any, as may be so specified.
(2) The Central Government may, by notification in the Official Gazette, apply the rules contained in the Second Schedule and any provisions of section 4-orsection 5-orsection 6-to such carriage by air, not being international carriage by air as defined in the Second Schedule, as may be specified in the notification, subject, however, to such exceptions, adaptations and modifications, if any As may be so specified.
(3) Every notification issued by the Central Government under section 4-2of the Indian Carriage by Air Act. 1934 and in force immediately before the commencement of this Act shall be deemed to have been issued under sub-section (1) and shall continue to be in force until such notification is superseded.
SECTION 09: REPEAL
[Repealed by the Repealing and Amending Act (38 of 1978), S.2 (26-11- 1978)].
SCHEDULE 01: THE FIRST SCHEDULE
(See Section 3-) RULES
CHAPTER 01: SCOPE -- DEFINITIONS
CHAPTER
1 1
(1) These rules apply to all international carriage of persons, luggage or goods performed by aircraft for reward. They apply also to such carriage when performed gratuitously by an air transport undertaking.
(2) In these rules, "High Contracting Party" means a High Contracting Party to the Convention.
(3) For the purposes of these rules the expression, "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 a transhipment, are situated either within the territories of two High Contracting Parties, or within the territory 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. A carriage without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party is not deemed to be international for the purposes of these rules.
(4) A carriage to be performed by several successive air carriers is deemed, for the purposes of these rules to be one undivided carriage, if it has been regarded by the parties as a single operation, whether it has been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within a territory subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party,
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(1) These rules apply to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down inRule 1.
(2) These rules do not apply to carriage performed under the terms of any international postal Convention.
CHAPTER 02: DOCUMENTS OF CARRIAGE
Part I Passenger ticket
3 3
(1) For the carriage of passengers the carrier must deliver a passenger ticket which shall contain the following particulars:-;
(a) the place and date of issue;
(b) the place of departure and of destination;
(c) the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right, the alteration shall not have the effect of depriving the carriage of its international character;
(d) the name and address of the carrier or carriers;
(e) a statement that the carriage is subject to the rules relating to liability contained in, this Schedule.
(2) The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage, which shall nonetheless be subject to these rules. Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this Schedule which exclude or limit his liability.
Part II Luggage ticket
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(1) For the carriage of luggage other than small personal objects of which the passenger takes charge himself, the carrier must deliver a luggage ticket.
(2) The luggage ticket shall be made out in duplicate, one part for the passenger and the other part for the carrier.
(3) The luggage ticket shall contain the following particulars:-
(a) the place and date of issue;
(b) the place of departure and of destination;
(c) the name and address of the carrier or carriers;
(d) the number of the passenger ticket;
(e) a statement that delivery of the luggage will be made to the bearer of the luggage ticket;
(f) the number and weight of the packages;
(g) the amount of the value declared in accordance withRule 22(2);
(h) a statement that the carriage is subject to the rules relating to liability contained in this Schedule.
(4) The absence, irregularity or loss of the luggage ticket does not affect the existence or the validity of the contract of carriage, which shall nonetheless be subject to these rules. Nevertheless if the carrier accepts luggage without a luggage ticket having been delivered, or if the luggage ticket docs not contain the particulars set out at (d), (f) and (h) of sub-rule (3), the carrier shall not be entitled to avail himself of those provisions of this Schedule which exclude or limit his liability.
Part III Air consignment note
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(1) Every carrier of goods has the right to require the consignor to make out and hand over to him a document called an "air consignment note"; every consignor has the right to require the carrier to accept this document.
(2) The absence, irregularity or loss of this document does not affect the existence or the validity of the contract of carriage which shall, subject to the provisions ofRule 9, be nonetheless governed by these rules.
6 6
(1) The air consignment note shall be made out by the consignor in three original parti and be handed over with the goods.
(2) The first part shall be marked "for the carrier" and shall be signed by the consignor. The second part shall be marked "for the consignee"; it shall be signed by the consignor and by the carrier and shall accompany the goods. The third part shall be signed by the carrier and handed by him to the Consignor after the goods have been accepted.
(3) The carrier shall sign an acceptance of the goods.
(4) The signature of the carrier may be stamped; that of the consignor may be printed or stamped.
(f) If, at the request of the consignor, the carrier makes out the air consignment note, he shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor.
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The carrier of goods has the right to require the consignor to make out separate consignment notes when there is more than one package.
8 8
The air consignment note shall contain the following particulars:-
(a) the place date of its execution;
(b) the place of departure and of destination;
(c) the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right the alteration shall not have the effect of depriving the carriage of its international character;
(d) the name and address of the consignor;
(e) the name and address of the first carrier,
(f) the name and address of the consignee, if the case so requires;
(g) the nature of the goods:
(h) the number of the packages, the method of packing and the particular marks or numbers upon them;
(i) the weight, the quantity and the volume or dimensions of the goods;
(j) the apparent condition of the goods and of the packing;
(k) the freight, if it has been agreed upon, the date and place of payment, and the person who is to pay it;
(l) if the goods are sent for payment on delivery, the price of the goods, and if the case so requires, the amount of the expenses incurred;
(m) the amount of the value declared in accordance withrule 22(2);
(n) the number of parts of the air consignment note;
(o) the documents handed to the carrier to accompany the air consignment note;
(p) the time fixed for the completion of the carriage and a brief note of the route to be followed, if.these matters have been agreed upon;
(q) a statement that the carriage is subject to the rules relating to liability contained in this Schedule.
9 9
If the carrier accepts goods without an air consignment note having been made out, or if the air consignment note does not contain all the particulars set out inrule 8(a)(i)inclusive and (q), the carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability.
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(1) The consignor is responsible for the correctness of the particulars and statements relating to the goods which he inserts in the air consignment note.
(2) The consignor will be liable for all damage suffered by the carrier or any other person of the irregularity, incorrectness or incompleteness of the said particulars and statements.
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(1) The air consignment note is prima facie evidence of the conclusion of the contract, of the receipt of the goods and of the conditions of carriage.
(2) The statements in the air consignment note relating to the weight, dimensions and packing of the goods, as well as those relating to the number of packages, are prima facie evidence of the facts stated; those relating to the quantity, volume and condition of the goods do not constitute evidence against the carrier except so far as they both have been, and are stated in the air consignment note to have been, checked by him in the presence of the consignor, or relate to the apparent condition of the goods.
12 12
(1) Subject to his liability to carry out all his obligations under the contract of carriage, the consignor has the right to dispose of the goods by withdrawing them at the aerodrome of departure or destination, or by stopping them in the course of the journey on any landing or, by calling for them to be delivered at the place of destination or in the course of the journey to a person other than the consignee named in the air consignment note or by requiring them to be returned to the aerodrome of departure. He must not exercise the right of disposition in such a way as to prejudice the carrier or other consignors and he must repay any expenses occasioned by the exercise of this right.
(2) If it is impossible to carry out the orders of the consignor the carrier must so inform him forthwith.
(3) If the carrier obeys the orders of the consignor for the disposition of the goods without requiring the production of the part of the air consignment note delivered to the latter, he will be liable, without prejudice to his right of recovery from the consignor, for any damage which may be caused thereby to any person who is lawfully in possession of that part of the air consignment note.
(4) The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance withrule 13. Nevertheless, if the consignee declines to accept the consignment note or the goods, or if he cannot be communicated with, the consignor resumes his right of disposition.
13 13
(1) Except in the circumstances set out inrule 12, the consignee is entitled on arrival of the goods at the place of destination, to require the carrier to hand over to him the air consignment note and to deliver the goods to him, on payment of the charges due and on complying with the conditions of carriage set out in the air consignment note.
(2) Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consigne as soon as the goods arrive.
(3) If the carrier admits the loss of the goods, or if the goods have not arrived at the expiration of seven days after the date on which they ought to have arrived, the consignee it entitled to put into force against the carrier the rights which flow from the contract of carriage.
14 14
The consignor and the consignee can respectively enforce all the rights given to them byrules 12and13, each in his own name, whether he is acting in his own interest or in the interest of another, provided that he carries out the obligations imposed by the contract.
15 15
(1)Rules 12,13and14do not affect either the relations of the consignor or the consignee, with each other or the mutual relations of third parties whose rights are derived either from the consignor or from the consignee.
(2) The provisions ofrules 12,13and14can only be varied by express provisions in the air
consignment note.
16 16
(1) The consignor must furnish such information and attach to the air consignment note such documents as are necessary to meet the formalities of Customs, octroi or police before the goods can be delivered to the consignee. The consignor is liable to the carrier for any damage occasioned by the absence, insufficiency or irregularity of any such information or documents, unless the damage is due to the fault of the carrier or his agents.
(2) The carrier is under no obligation to enquire into the correctness or sufficiency of such information or documents.
CHAPTER 03: LIABILITY OF THE CARRIER CHAPTER
17 17
The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
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(1) The carrier is liable for damage sustained in the event of the destruction or loss of,or of damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air.
(2) The carriage by air within the meaning of sub-rule (1) comprises the period during which the luggage or goods are in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome in any place whatsoever.
(3) The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a 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 curing the carriage by air.
19 19
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods.
20 20
(1) The carrier is not liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.
(2) In the carriage of goods and luggage the carrier is not liable if he proves that the damage was occasioned by negligent pilotage or negligence in the handling of the aircraft or in navigation and that, in all other respects, he and his agents have taken all necessary measures to avoid the damage.
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