1、DOC 9832-LC/I 92 International Civil Aviation Organization LEGAL COMMITTEE 32nd SESSION Montral, 15-21 March 2004 REPORT Published by authority of the Secretary General 2004 Montral Canada Copyright International Civil Aviation Organization Provided by IHS under license with ICAONot for ResaleNo rep
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18、Provided by IHS under license with ICAONot for ResaleNo reproduction or networking permitted without license from IHS-,-,-Internati onal C ivi 1 Aviation Organization DOC 9832-LU192 LEGAL COMMITTEE 32nd SESSION Montreal, 15 - 2 1 March 2004 REPORT Publihhed by authorig of the Secretav General 2004 M
19、ontreal Canada Copyright International Civil Aviation Organization Provided by IHS under license with ICAONot for ResaleNo reproduction or networking permitted without license from IHS-,-,-To: From: REPORT OF THE 32ND SESSION OF THE LEGAL COMMITTEE Letter of Transmittal President of the Council Chai
20、rman of the Legal Committee I have the honour to submit, in accordance with Rule 46 of the Rules of Procedure of the Legal Committee, the Report of the 32nd Session of the Legal Cornmittee. G. Lauzon Montreal, 7 April 2004 Copyright International Civil Aviation Organization Provided by IHS under lic
21、ense with ICAONot for ResaleNo reproduction or networking permitted without license from IHS-,-,-Table of Contents 1 LEGAL COMMITTEE . 32ND SESSION (Montreal. 15 to 2 1 March 2004) Table of Contents Page 1 . PlaceandDuration . 1 Opening Addresses . 1 AgendaandWorkingArrangements . 2 Meetings 2 Recor
22、dsofProceedings . 2 Representation of States and International Organizations . 2 REPORT ON THE AGENDA 2 . Item 2: Report of the Secretariat 2-1 3 . Item 3: Consideration of the modernization of the Convention on Damage Caused by Foreign Aircrafr to Third Parties on the Surface. signed at Rome on 7 O
23、ctober 1952 3- 1 4 . Item 4: Consideration of an amendment recommended by the International Explosives Technical Commission (IETC) 4- 1 5 . Item 5: Consideration of other items on the General Work Programme of the Legal Committee 5-1 6 . Item 6: Review of the General Work Programme of the Legal Comm
24、ittee 6 with the liability for damage to property, which had to be more clearly established; and with the proposed suspension of liability rules by the Council of ICAO, which would weaken the States position and leave victims in an artificial vacatio legis, without adequate protection. 3:lO One dele
25、gation, not party to theRome Convention, stated that its national system functioned properly so far but recognized the need for a reform at a global level, especially given the emergence of terrorism which is a challenge for every liability regime. This justified a re-thinking of the whole system, a
26、s insurance markets required a global regime with uniform rufes, which could be done on the basis ofthe draft as a reasonable starting point for negotiations towards a potential compromise. Another delegation was of the opinion that such deal would, in fact, have to be struck between the operators a
27、nd the society, not the victimsper se. The matter was indeed one of distribution ofrisks, as amplified by the events of 1 1 September 2001, bearing nevertheless in mind that victims had to be compensated as far as possible in case of terrorist acts. One delegation shared in this regard the Rapporteu
28、rs optimism to reach a compromise for a uniform regime governing insurable risks at viable costs, striking a fair balance of interests, while noting that several issues were still to be resolved, including the question of environmental damage to the atmosphere. Copyright International Civil Aviation
29、 Organization Provided by IHS under license with ICAONot for ResaleNo reproduction or networking permitted without license from IHS-,-,-Report on Agenda Item 3 3 -3 3:ll One delegation noted that the draft text introduced several new concepts and met the objective of modernizing the Rome Convention
30、of 1952, but it stated that some of these concepts needed to be defined more precisely. Regarding the definition of aircraft “in flight”, it stated that this could encompass flight preparation and sub-contractors of the carrier or concessionnaires; the question whether the intention is to cover only
31、 the operator or also such other persons would need to be clarified. The liability regime, as found in Chapter II and III, must be internally consistent. The focus should be on compensation for damage and not so much on who was responsible, for example, whether it was the carrier or a State; this al
32、location of responsibility would be determined on a case-by-case basis. 3:12 It was emphasized by another delegation that the treatment ofthird parties should not be less than that accorded to passengers who were in a contractual relationship with the carrier; this particular view was echoed by seve
33、ral other delegations. Extending the convention to domestic flights would be in line with liberalization policies adopted by States and would unifi the law applicable to damage caused by foreign aircraft and by aircraft on domestic flights. A balance should be struck between the various interests; c
34、arriers should not have to shoulder the burden of absolute liability and responsibility, for example, in cases involving environmental damage or where the damage was caused by an act of unlawful interference which might involve the negligence of security services at airports. 3:13 One delegation sta
35、ted that the draft convention regulated damage from two different risks, the ordinary or safety-related risk and that arising from acts of unlawful interference. With respect to the latter, it should be borne in mind that the operator was also a victim. As the Rapporteur had pointed out, the moderni
36、zation ofthe Rome Convention was not so urgent, at least with respect to normal accidental damage. Perhaps it would be more appropriate to limit the scope of the new convention to damage arising from acts of unlawful interference, which had a more urgent dimension. The delegation also pointed out it
37、s concern that the extension of the scope of the convention beyond third parties on the surface would complicate matters. 3:14 It was the view of one delegation that the events of 11 September 2001 made the modernization of the Rome Convention overdue. Governments may have a certain degree of respon
38、sibility in the case of acts of unlawful interference, and possible hardships on other parties such as operators, owners, lessors and financiers etc. should be considered; this view was shared by some other speakers. This delegation did not favour compensation for mental injury. Advance payments sho
39、uld not be made mandatory. The question of forum should also be closely examined to prevent forum shopping. 3:15 One delegation was not in favour of applying the convention in the case of domestic flights. The limits of liability indicated in the draft text were appropriate although the delegation w
40、as open to consideration of higher amounts. 3:16 A delegation informed that its State was not party to the Rome Convention. The applicable domestic law worked satisfactorily, but it recognized the need to modernize the Rome Convention in the light of the 1 1 September 200 1 events. The draft text pr
41、ovided a reasonable basis for discussion. 3:17 Many other delegations likewise supported the modernization effort. One of these referred in particular to the issue of minimum insurance requirements and to the definition of State aircraft. With respect to the possible applicability to domestic flight
42、s, it suggested adopting optional texts similar to those found in the Cape Town instruments. Copyright International Civil Aviation Organization Provided by IHS under license with ICAONot for ResaleNo reproduction or networking permitted without license from IHS-,-,-3-4 Report on Agenda Item 3 3:18
43、One delegation spoke of the need for a balanced, clear and fair text that would provide speedy and adequate compensation to victims. Specifically, it did not in principle object to the two-tier liability system. It could support the indicative figures in the text but was open to other proposals in t
44、his regard. It agreed to include special provisions to cover damages arising from acts of unlawful interference, but did not wish to extend the scope of the convention to include domestic flights. Further, it expressed serious doubts about making the operator liable for environmental damage. 3:19 It
45、 was the opinion of another delegation that reducing the compensation levels compared with the Montreal Convention (1 999) required justification especially in a non-contractual situation. The two-tier system may not offer full compensation. Limits of liability discriminated among those who suffer d
46、amage and it was difficult to fix the appropriate amount of compensation; it would prefer strict unlimited liability for the basic risk, and agreed that the basic risk should be treated differently from damage arising from acts of unlawful interference. 3:20 One delegation advised that its State had
47、 denounced the Rome Convention, and that its national law provided for strict unlimited liability. One of the primary concerns was to ensure adequate compensation for damage caused to the innocent bystander. In practice, compensation was limited to the extent that the liable party was insured, and s
48、o by the quantum of insurance. The key issue to be addressed was how to deal with the instances where the insurance was inadequate. In many States, in such a situation, governments would probably cover the shortfall, in the manner of a “social contract”. In this regard, the delegation referred to th
49、e work of ICA0 regarding “Globaltime”. 3:21 The view was expressed by adelegation that the Rome Convention was unsuccessful because many States felt that their domestic legislation adequately covered the matter. However, a new convention could provide added value in terms of reciprocal recognition and enforcement
