No. 6/1965:

AIR NAVIGATION AND TRANSPORT ACT, 1965

ARRANGEMENT OF SECTIONS

1 Interpretation.

2 Guadalajara Convention to have the force of law in the State.

3 Interpretation of Guadalajara Convention.

4 Re-enactment with amendments of section 18 of Principal Act.

5 Amendment of section 20 of Principal Act.

6 Restriction on operation of air services.

7 Power to authorise by order the operation of air services.

8 Authorisation to operate air services.

9 Power to fix by order fares and rates charged on air services.

10 Approval of fares and rates charged on air services.

11 Keeping of records and furnishing of information to Minister in respect of air services.

12 Penalties.

13 Detention of aircraft.

14 Extension of section 62 of Principal Act.

15 Application to State aircraft.

16 Regulations and directions.

17 General provisions in relation to orders and regulations made by the Minister.

18 Expenses of Minister.

19 Repeal.

20 Short title and collective citation.

SCHEDULE

AN ACT TO ENABLE EFFECT TO BE GIVEN TO 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, MEXICO, ON THE 18TH DAY OF SEPTEMBER, 1961, TO MAKE FURTHER PROVISION IN RELATION TO THE CONTROL AND REGULATION OF AIR SERVICES TO, FROM, WITHIN AND OVER THE TERRITORY OF THE STATE AND OF RATES AND FARES CHARGED ON AIR SERVICES TO, FROM AND WITHIN THE TERRITORY OF THE STATE, FOR THOSE AND OTHER PURPOSES TO AMEND AND EXTEND THE AIR NAVIGATION AND TRANSPORT ACTS, 1936 TO 1963, AND TO PROVIDE FOR MATTERS CONNECTED WITH THE MATTERS AFORESAID.

[30th March, 1965.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

1.—(1) In this Act—

"air service" means a flight or flights by one or more aircraft carrying passengers, cargo or mail for reward;

"the Guadalajara Convention" means 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, Mexico, on the 18th day of September, 1961;

"the Minister" means the Minister for Transport and Power;

"the Principal Act" means the Air Navigation and Transport Act, 1936 ;

"the Act of 1959" means the Air Navigation and Transport Act, 1959 .

(2) References in this Act to the territory of the State shall, unless the context otherwise requires, be construed as including the territorial seas adjacent to such territory.

2.—(1) The provisions of the Guadalajara Convention, as set out in the Schedule to this Act, shall have the force of law in the State.

(2) The Government may by order from time to time certify who are the Contracting States to the Guadalajara Convention and in respect of what territories they are respectively Contracting States.

3.—(1) In the Schedule to this Act "the Warsaw Convention" means in relation to carriage by air—

( a ) if the carriage is under the Convention set out in the First Schedule to The Principal Act, that Convention, and

( b ) if the carriage is under that Convention as amended by the Protocol set out in the Schedule to the Act of 1959, that Convention as so amended,

but, in relation to rights or liabilities arising out of an occurrence before the day on which Part III of the Act of 1959 came into operation, "the Warsaw Convention" means the Convention set out in the First Schedule to The Principal Act.

(2) In Articles VII and VIII of the Guadalajara Convention "court" includes (in an arbitration allowed by the Conventions referred to in the foregoing subsection or by Article IX, 3 of the Guadalajara Convention) an arbitrator.

4.—The following section shall be substituted for section 18 (inserted by the Civil Liability Act, 1961 ), of the Principal Act:

"Liability of carrier in the event of the death of a passenger.

18. (1) ( a ) In this section—

'dependant', in relation to a passenger in respect of whose death a liability is imposed on a carrier by Article 17 of the Warsaw Convention or the Guadalajara Convention, means any member of the family of the deceased who suffers injury or mental distress;

'member of the family' means wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister.

( b ) In deducing any relationship for the purposes of this section—

(i) a person adopted under the Adoption Acts, 1952 and 1964, shall be considered the legitimate offspring of the adopter or adopters;

(ii) subject to subparagraph (i) of this paragraph, an illegitimate person shall be considered the legitimate offspring of his mother and reputed father;

(iii) a person in loco parentis to another shall be considered the parent of that other.

(2) Any liability to pay damages imposed by Article 17 of the Warsaw Convention or the Guadalajara Convention on a carrier in respect of the death of a passenger shall be in substitution for any liability of the carrier in respect of the death of that passenger under any statute (including Part IV of the Civil Liability Act, 1961 ) or at common law, and the following provisions shall have effect in relation to the action to enforce the liability so imposed—

( a ) the liability shall be enforceable for the benefit of the dependants of the passenger;

( b ) only one action for damages may be brought in the State against the same person in respect of the death;

( c ) the action may be brought by the personal representative of the passenger or, if at the expiration of six months from the death there is no personal representative or no action has been brought by the personal representative, by all or any of the dependants;

( d ) the action, by whomsoever brought, shall be for the benefit of all the dependants who are either resident in the State or, not being resident there, express a desire to take the benefit of the action;

( e ) the plaintiff shall furnish the defendant with particulars of the persons for whom and on whose behalf the action is brought;

( f ) subject to paragraph (m) of this subsection—

(i) the damages shall be the total of such amounts (if any) as the jury or the judge, as the case may be, shall consider proportioned to the injury resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought, and

(ii) subject to paragraph (g) of this subsection, the total of such amounts (if any) as the judge shall consider reasonable compensation for mental distress resulting from the death to each of such dependants;

( g ) the total of any amounts awarded by virtue of subparagraph (ii) of paragraph ( f ) of this subsection shall not exceed one thousand pounds;

( h ) each amount awarded by virtue of paragraph ( f ) of this subsection shall be indicated separately in the award;

( i ) in addition, damages may be awarded in respect of funeral and other expenses actually incurred by the passenger, the dependants or the personal representative as a result of the accident which caused the death of the passenger;

( j ) it shall be sufficient for the defendant in paying money into court in the action to pay it in one sum as damages for all the dependants without apportioning it between them;

( k ) the amount recovered in the action shall, after deducting the costs not recovered from the defendant, be divided among the persons entitled in such shares as the jury or the judge, as the case may be, may have determined;

( l ) in assessing the damages account shall not be taken of any sum payable on the death of the passenger under any contract of insurance, or of any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased;

( m ) the court before which the action is brought may at any stage of the proceedings make such order as appears to the court to be just and equitable in view of the provisions of the First Schedule to this Act limiting the liability of the carrier and of any proceedings which have, or are likely to be, commenced outside the State in respect of the death of the passenger.

(3) In this section 'the Guadalajara Convention' means 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, Mexico, on the 18th day of September, 1961."

5.—In section 20 of the Principal Act references to the First Schedule to that Act shall be construed as including references to the Guadalajara Convention.

6.—(1) An air service shall not be operated to, from, within or over the territory of the State unless—

( a ) (i) the service is of a kind standing authorised by an order under section 7 of this Act and the service is operated in accordance with the provisions of the order, or

(ii) an authorisation under section 8 of this Act is in force in respect of the service and, if the authorisation contains any provisions or conditions, the service is operated in accordance with those provisions or conditions,

and

( b ) in the case of a service to, from or within the territory of the State—

(i) if an order under section 9 of this Act fixing the fares or rates to be charged for the carriage of passengers, cargo and mail on the service is in force, the fares or rates so fixed are charged on the service, and

(ii) if the fares or rates to be charged for the carriage of passengers, cargo and mail on the service stand approved of by the Minister under section 10 of this Act, the fares or rates so standing approved are charged on the service.

(2) Subsection (1) of this section and section 19 of this Act shall come into operation on such day as the Minister may appoint by order.

7.—(1) The Minister may by order authorise, subject to such conditions as may be specified in the order, the operation of such air services, or categories of air services, to, from, within or over the territory of the State as may be specified in the order.

(2) An order under this section may contain such provisions in relation to the operation of air services to which it applies as the Minister thinks appropriate.

(3) Categories of air services may be denoted in an order under this section in such manner and by reference to such matters, including the origin and destination of the flight or flights comprising the air service, as the Minister thinks appropriate.

(4) The Minister may by order revoke or amend an order under this section including an order under this subsection.

(5) Upon the coming into operation of an order under this section, the Air Navigation (International Lines) Order, 1935, shall cease to have effect.

8.—(1) The Minister may, in his absolute discretion, grant or refuse to grant an authorisation to any person entitling the person to operate an air service to, from, within or over the territory of the State.

(2) An authorisation under this section may contain such provisions and conditions as the Minister thinks appropriate.

(3) The Minister may, whenever he so thinks fit, amend or revoke a provision or condition of an authorisation under this section.

(4) Subject to subsection (5) of this section, an authorisation under this section shall remain in force for such period as the Minister thinks fit and specifies in the authorisation.

(5) Upon breach of, or failure, neglect or omission to comply with, a provision or condition contained in an authorisation under this section, the Minister may revoke the authorisation.

(6) ( a ) The Minister may make regulations for the purposes of this section.

( b ) Without prejudice to the generality of paragraph (a) of this subsection, regulations under this subsection may prescribe forms of authorisations under this section, forms of application for such authorisations, the information to be furnished to the Minister by applicants for such authorisations, and (with the consent of the Minister for Finance) provide for the payment of fees on the grant of such authorisations and (with the consent aforesaid) prescribe the amount of the fees (including different amounts in respect of authorisations in relation to different air services and in relation to air services previously the subject of authorisations under this section).

(7) A certificate purporting to be signed by an officer of the Minister and to certify that on a specified day or days or during the whole of a specified period an authorisation under this section was not in force in respect of a specified air service shall, without proof of the signature of the person purporting to sign the certificate or that he was an officer of the Minister, be evidence until the contrary is proved of such of the matters aforesaid as are purported to be certified in and by the certificate.

9.—(1) The Minister may, by order, fix the fares or rates to be charged for the carriage of passengers, cargo or mail on air services to, from or within the territory of the State.

(2) An order under this section may fix different fares or rates in respect of different air services or different categories of passengers, cargo or mail and may apply in relation to all air services to, from or within the territory of the State or in relation only to a specified air service or specified air services to, from or within such territory.

(3) The Minister may by order revoke or amend an order under this section including an order under this subsection.

10.—(1) The Minister may in his absolute discretion approve or refuse to approve of the fares or rates proposed to be charged for the carriage of passengers, cargo or mail on an air service to, from or within the territory of the State.

(2) A certificate purporting to be signed by an officer of the Minister and to certify that on a specified day or days or during the whole of a specified period the fares or rates charged on a specified air service for the carriage of passengers, cargo or mail on the service did not stand approved under this section shall, without proof of the signature of the person purporting to sign the certificate or that he was an officer of the Minister, be evidence until the contrary is proved of such of the matters aforesaid as are purported to be certified in and by the certificate.

11.—The Minister may by regulations under this section—

( a ) require persons operating air services to, from, within or over the territory of the State—

(i) to keep records of such matters in relation to the aircraft engaged in those services as may be specified in the regulations,

(ii) to keep records of such matters in relation to the passengers, cargo and mail carried on those services as may be specified in the regulations,

(iii) to furnish to the Minister copies, summaries and abstracts of the records aforesaid at such times as may be specified in the regulations, and

(iv) if the Minister so thinks fit, to furnish the summaries and abstracts aforesaid in such form as the Minister may prescribe in the regulations,

(v) to produce records kept pursuant to the regulations to officers of the Minister and permit their inspection by the officers, and

(vi) to furnish to the Minister such information in relation to fares or rates charged or proposed to be charged in respect of the carriage of passengers, cargo and mail on those services as the Minister may specify, and

( b ) provide for inspection by officers of the Minister of records kept pursuant to the regulations.

12.—(1) If—

( a ) an aircraft flies in contravention of a provision of this Act or an order, regulation or direction under this Act,

( b ) an aircraft fails to comply with a provision of this Act or an order or regulation under this Act, or

( c ) an act is committed in respect of an aircraft which is a contravention of a provision of this Act or an order, regulation or direction under this Act,

the owner or hirer (not being the State) of the aircraft and also the person in command thereof shall be deemed to have contravened or, as the case may be, failed to comply with the provision.

(2) A person who contravenes or fails to comply with or who is deemed by this section to have contravened or failed to comply with a provision of this Act or an order, regulation or direction under this Act shall be guilty of an offence and shall be liable—

( a ) on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred pounds or, at the discretion of the Court, to both the imprisonment and the fine, or

( b ) on conviction on indictment to imprisonment for a term not exceeding six months or to a fine not exceeding one thousand pounds or, at the discretion of the Court, to both the imprisonment and the fine.

(3) In any prosecution of a person for an alleged contravention of or failure to comply with a provision of this Act or an order, regulation or direction under this Act it shall be a defence for the person to prove that the contravention or failure was due to stress of weather or other unavoidable cause, and in any prosecution of the owner, hirer or person in command of an aircraft for such alleged contravention or failure it shall be a defence for the owner, hirer or person in command to prove that the alleged contravention or failure took place without his actual default or privity.

(4) An offence under this Act may be prosecuted by or at the suit of the Minister as prosecutor.

13.—(1) The Minister may by order provide for the detention of aircraft to secure compliance with the provisions of this Act or orders, regulations or directions under this Act.

(2) The references in sections 64 and 65 of The Principal Act to that Act shall be construed as including references to this Act and the said section 64 shall have effect, in its application to an offence committed in relation to an aircraft detained under this Act, as if the following were added to subsection (5): "or on conviction on indictment thereof to a fine not exceeding one thousand pounds".

14.—The references in subsections (1) and (2) of section 62 of the Principal Act to that Act shall be construed as including references to this Act.

15.—(1) Subject to the provisions of this section, this Act shall not apply to State aircraft.

(2) The Minister may by order direct that such provisions of this Act or any order or regulations made thereunder as may be specified in the order shall, with or without modifications, apply to State aircraft, and whenever an order is made under this subsection and is in force, such of those provisions as may be specified in the order shall, subject to the modifications, if any, specified in the order, apply to State aircraft.

(3) The Minister may by order amend or revoke an order under this section including an order under this subsection.

(4) In this section "State aircraft" means aircraft of any country used in military, customs and police services.

16.—The Minister may make regulations or give directions in relation to any matter in respect of which the Minister is authorised by an order or regulations under this Act to make regulations or give directions for carrying out the purposes of the order or regulations.

17.—(1) An order or regulations made by the Minister under this Act may authorise the Minister to make regulations and give directions for carrying out the purposes of the order or regulations in respect of such matters and things as may be specified in the order or regulations.

(2) An order or regulations made by the Minister under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the order or regulations.

(3) Every order and regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling the order or regulation is passed by either House within the next subsequent twenty-one days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

18.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

19.—Parts IX and X of The Principal Act are hereby repealed.

20.—(1) This Act may be cited as the Air Navigation and Transport Act, 1965 .

(2) This Act and the Air Navigation and Transport Acts, 1936 to 1963, may be cited together as the Air Navigation and Transport Acts, 1936 to 1965.

SCHEDULE

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.

THE STATES SIGNATORY TO THE PRESENT CONVENTION

NOTING that the Warsaw Convention does not contain particular rules relating to international carriage by air performed by a person who is not a party to the agreement for carriage

CONSIDERING that it is therefore desirable to formulate rules to apply in such circumstances

HAVE AGREED AS FOLLOWS:

ARTICLE I.

In this Convention:

( a ) "Warsaw Convention" means the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929, or the Warsaw Convention as amended at The Hague, 1955, according to whether the carriage under the agreement referred to in paragraph (b) is governed by the one or by the other;

( b ) "contracting carrier" means a person who as a principal makes an agreement for carriage governed by the Warsaw Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor;

( c ) "actual carrier" means a person, other than the contracting carrier, who, by virtue of authority from the contracting carrier, performs the whole or part of the carriage contemplated in paragraph (b) but who is not with respect to such part a successive carrier within the meaning of the Warsaw Convention. Such authority is presumed in the absence of proof to the contrary.

ARTICLE II.

If an actual carrier performs the whole or part of carriage which, according to the agreement referred to in Article I, paragraph (b), is governed by the Warsaw Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in this Convention, be subject to the rules of the Warsaw Convention, the former for the whole of the carriage contemplated in the agreement, the latter solely for the carriage which he performs.

ARTICLE III.

1. The acts and omissions of the actual carrier and of his 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.

2. The acts and omissions of the contracting carrier and of his 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 limits specified in Article 22 of the Warsaw Convention. Any special agreement under which the contracting carrier assumes obligations not imposed by the Warsaw Convention or any waiver of rights conferred by that Convention or any special declaration of interest in delivery at destination contemplated in Article 22 of the said Convention, shall not affect the actual carrier unless agreed to by him.

ARTICLE IV.

Any complaint to be made or order to be given under the Warsaw Convention to the carrier shall have the same effect whether addressed to the contracting carrier or to the actual carrier. Nevertheless, orders referred to in Article 12 of the Warsaw Convention shall only be effective if addressed to the contracting carrier.

ARTICLE V.

In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of the contracting carrier shall, if he proves that he acted within the scope of his employment, be entitled to avail himself of the limits of liability which are applicable under this Convention to the carrier whose servant or agent he is unless it is proved that he acted in a manner which, under the Warsaw Convention, prevents the limits of liability from being invoked.

ARTICLE VI.

In relation to the carriage performed by the actual carrier, the aggregate of the amounts recoverable from that carrier and the contracting carrier, and from their servants and agents acting within the scope of their employment, shall not exceed the highest amount which could be awarded against either the contracting carrier or the actual carrier under this Convention, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to him.

ARTICLE VII.

In relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately. If the action is brought against only one of those carriers, that carrier shall have the right to require the other carrier to be joined in the proceedings, the procedure and effects being governed by the law of the court seised of the case.

ARTICLE VIII.

Any action for damages contemplated in Article VII of this Convention must be brought, at the option of the plaintiff, either before a court in which an action may be brought against the contracting carrier, as provided in Article 28 of the Warsaw Convention, or before the court having jurisdiction at the place where the actual carrier is ordinarily resident or has his principal place of business.

ARTICLE IX.

1. Any contractual provision tending to relieve the contracting carrier or the actual carrier of liability under this Convention or to fix a lower limit than that which is applicable according to this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole agreement, which shall remain subject to the provisions of this Convention.

2. In respect of the carriage performed by the actual carrier, the preceding paragraph shall not apply to contractual provisions governing loss or damage resulting from the inherent defect, quality or vice of the cargo carried.

3. Any clause contained in an agreement for carriage and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Convention, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless, for the carriage of cargo arbitration clauses are allowed, subject to this Convention, if the arbitration is to take place in one of the jurisdictions referred to in Article VIII.

ARTICLE X.

Except as provided in Article VII, nothing in this Convention shall affect the rights and obligations of the two carriers between themselves.

ARTICLE XI.

Until the date on which this Convention comes into force in accordance with the provisions of Article XIII, it shall remain open for signature on behalf of any State which at that date is a Member of the United Nations or of any of the Specialised Agencies.

ARTICLE XII.

1. This Convention shall be subject to ratification by the signatory States.

2. The instruments of ratification shall be deposited with the Government of the United States of Mexico.

ARTICLE XIII.

1. As soon as five of the signatory States have deposited their instruments of ratification of this Convention, it shall come into force between them on the ninetieth day after the date of the deposit of the fifth instrument of ratification. It shall come into force for each State ratifying thereafter on the ninetieth day after the deposit of its instrument of ratification.

2. As soon as this Convention comes into force, it shall be registered with the United Nations and the International Civil Aviation Organisation by the Government of the United States of Mexico.

ARTICLE XIV.

1. This Convention shall, after it has come into force, be open for accession by any State Member of the United Nations or of any of the Specialised Agencies.

2. The accession of a State shall be effected by the deposit of an instrument of accession with the Government of the United States of Mexico and shall take effect as from the ninetieth day after the date of such deposit.

ARTICLE XV.

1. Any Contracting State may denounce this Convention by notification addressed to the Government of the United States of Mexico.

2. Denunciation shall take effect six months after the date of receipt by the Government of the United States of Mexico of the notification of denunciation.

ARTICLE XVI.

1. Any Contracting State may at the time of its ratification of or accession to this Convention or at any time thereafter declare by notification to the Government of the United States of Mexico that the Convention shall extend to any of the territories for whose international relations it is responsible.

2. The Convention shall, ninety days after the date of the receipt of such notification by the Government of the United States of Mexico, extend to the territories named therein.

3. Any Contracting State may denounce this Convention, in accordance with the provisions of Article XV, separately for any or all of the territories for the international relations of which such State is responsible.

ARTICLE XVII.

No reservation may be made to this Convention.

ARTICLE XVIII.

The Government of the United States of Mexico shall give notice to the International Civil Aviation Organisation and to all States Members of the United Nations or of any of the Specialised Agencies:

( a ) of any signature of this Convention and the date thereof;

( b ) of the deposit of any instrument of ratification or accession and the date thereof;

( c ) of the date on which this Convention comes into force in accordance with Article XIII, paragraph 1;

( d ) of the receipt of any notification of denunciation and the date thereof;

( e ) of the receipt of any declaration or notification made under Article XVI and the date thereof.

IN WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly authorised, have signed this Convention.

DONE at Guadalajara on the eighteenth day of September One Thousand Nine Hundred and Sixty-one in three authentic texts drawn up in the English, French and Spanish languages. In case of any inconsistency, the text in the French language in which language the Warsaw Convention of 12 October 1929 was drawn up, shall prevail. The Government of the United States of Mexico will establish an official translation of the text of the Convention in the Russian language.

This Convention shall be deposited with the Government of the United States of Mexico with which, in accordance with Article XI, it shall remain open for signature, and that Government shall send certified copies thereof to the International Civil Aviation Organisation and to all States Members of the United Nations or of any Specialised Agency.

(Here follow signatures on behalf of certain States).