DEPARTMENT OF TRANSPORT

EXPLANATORY MEMORANDUM ON THE RATIFICATION AND OR ACCESSION TO THE CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR

PURPOSE

The purpose of this memorandum is to provide an explanation of the proposal 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.

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 (Warsaw Convention). The Warsaw Convention was subsequently amended by the Hague Protocol of 1955, the Guatemala City Protocol of 1971 and the Montreal Protocols 1-4 of 1975.

These international law instruments are jointly referred to as the Warsaw System. The high mobility of passengers and the globalisation of the air transport industry have resulted in a high level of complexity and fragmentation of the Warsaw System.

The Convention for the Unification of Certain Rules for International Carriage by Air, 1999 aimed at modernising the Warsaw System; was accepted at an International Civil Aviation Organisation (ICAO) Diplomatic Conference in 1999. The Republic of South Africa is a signatory to the Montreal Convention.

The Montreal Convention of 1999 modernised and consolidated a seventy-year old system of international instruments of private international law into one legal instrument that provides an adequate level of compensation for those involved in international air accidents.

OBJECTIVE AND IMPLICATIONS OF THE MONTREAL CONVENTION

The Montreal Convention, 1999 provides the following improvements:

offers better protection to victims of international air accidents, as adequate levels of compensation will be provided. The Warsaw Convention had set a very low compensation levels for victims of air accidents as well as liability for damage, delay or loss of baggage and cargo in accidents;

introduces the concept of unlimited liability. In case of death or injury to passengers, the Montreal Convention introduces a two-tier system. The first tier includes strict liability up to 100 000 Special Drawing Rights(SDR), irrespective of a carrier’s fault. The second tier is based on the presumption of fault of a carrier and has no limit of liability;

in cases of aircraft accidents, air carriers are called upon to provide advance payments without delay to assist entitled persons in meeting immediate economic needs;

air carriers must submit proof of insurance, thereby ensuring the availability of financial resources in cases of automatic payments or litigation;

legal action or damage resulting from death or injury of a passenger may be filed at the permanent place of residence of the passenger; subject to certain conditions; and

facilitation in the recovery of damages without the need for lengthy litigation and simplification and modernisation of documentation related to passengers, baggage and cargo.

SELF-EXECUTING PROVISIONS

On this aspect, the Department sought a legal opinion from the State Law Advisers (International Law) and the State Law Adviser, Adv. J B Schneeberger has opined that the Montreal Convention contains self-executing provisions.

For ease of reference we attach hereto copy of a legal opinion (marked as annexure "A") from the Office of the State Law Advisers dated 30 November 2000, the contents of which are self-explanatory.
CONSULTATION

More recently the Carriage by Air Amendment Bill amending the Carriage by Air Act, Act No. 17 of 1946 (incorporating the Montreal Convention) was published in the Government Gazette No. 26602 of 30 July 2004 inviting interested persons to submit written comments with regard to proposed Carriage by Air Amendment Bill and the Montreal Convention.

The Office of the State Law Adviser provided the Department with a legal opinion wherein they opined that the provisions of the Montreal Convention 1999 are not in conflict with the domestic law of the Republic of South Africa.

For ease of reference, please find attached hereto letter from the State Law Advisers W J J Nel / M A Olwage (marked as annexure "B") dated 16 September 1999, the contents of which are self-explanatory.

FINANCIAL IMPLICATIONS

There are no financial implications for the State.