2.59Modern Freedoms. Due to the process of growth in air transport and the evolution of airlines operating on a global basis, further commercial freedoms have evolved. However, these are not covered by the LOs for Air Law.

2.60Bermuda Agreement. The first bilateral Air Transport Agreement (ATA) was signed at Bermuda in 1946 between the UK government and the US government and set an example for other states to follow. Currently there are some 3000 ATAs in force globally.

The Conventions of Tokyo, the Hague and Montreal

2.61Unlawful acts against the safety of Civil Aviation. The fact that unlawful acts of violence endanger the safety of persons and jeopardize the safe operation of airports and the fact this undermines the confidence of the peoples of the world in the safety of civil aviation, led to the signing of the Conventions of Tokyo, Hague and Montreal.

2.62The Tokyo Convention of 1963. This convention provides that the State of Registration of an aircraft is competent to exercise jurisdiction over offences and acts committed on board. Its object is to ensure that offences, wherever committed should not go unpunished. As certain acts committed on board an aircraft may jeopardize the safety of the aircraft or persons and property on board or may prejudice good order and discipline on board, the aircraft commander and others are empowered to prevent such acts being committed and to deliver the person concerned to the appropriate authority. In the case of an anticipated or actual unlawful or forcible seizure of an aircraft in flight by a person on board, the States party to the Convention are obliged to take all appropriate measures to restore and preserve control of the aircraft to its lawful commander.

2.63The Hague Convention of 1970. After a spate of politically motivated terrorist hijackings of aircraft in the 1960s, the international community, under the auspices of ICAO, resolved to work together to prevent or deter (suppress) such acts. Otherwise known as the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague in December 1970, the convention defines the act of unlawful seizure of aircraft (hijacking), and lists which contracting states have undertaken to make such offences punishable by severe penalties. The convention contains detailed provisions on the establishment of jurisdiction by states over the offence; on the taking of the offender into custody; and on the prosecution or extradition of the offender. This convention came into effect on 14 October 1971.

2.64The Montreal Convention of 1971. This Convention is correctly titled the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. It makes it an offence to attempt any of the unlawful acts specified or to be an accomplice to such acts. The contracting states have undertaken to make these offences punishable by severe penalties. The convention contains similar detailed provisions regarding jurisdiction, custody, prosecution and extradition of the alleged offender as the Hague Convention of 1970. This convention came into force on 26 January 1973. It is mainly concerned with acts other than those pertaining to the unlawful seizure i.e.:

•Acts of violence on board which endanger people and property and the safety of the aeroplane

•The destruction of an aircraft in service or causing damage which renders it incapable of flight or which is likely to endanger its safety in flight

•Placing in an aircraft any device likely to destroy, damage or render unfit for flight any aircraft

International Agreements and Organizations 2

Organizations and Agreements International 2

•Destroying or damaging any air navigation facility or interference with its correct operation

•The communication of information known to be false which endangers the safety of an

aeroplane in flight

2.65 The Protocol Supplementary to the Montreal Convention of 1971. This protocol was adopted by a conference, which met at Montreal in 1988. It extends the definition of offence given in the 1971 Convention to include specified acts of violence at airports serving international civil aviation. Such acts include:

•The intentional and unlawful use of any device, substance or weapon in performing an act of violence against a person at an airport serving international civil aviation, which causes or is likely to cause serious injury or death

•The intentional and unlawful use of any device, substance or weapon to:

•Destroy or seriously damage the facilities of an airport

•Destroy or seriously damage aircraft not in service at the airport

•Disrupt the services at an airport

2.66Enforcement. Contracting States have undertaken to make these offences punishable by severe penalties. The protocol also contains provisions on jurisdiction.

2.67Annex 17. The measures taken by ICAO have resulted in the adoption of the SARPs detailed in Annex 17 - Security. The provisions of the SARPs are applicable to all Contracting States. The annex requires all Contracting States to:

•Establish national civil aviation security programmes

•designate an authority responsible for security

•keep the level of threat under constant review

•co-ordinate activities with other relevant national agencies and liaise with the corresponding authority in other States

2.68Programmes and Plans. In order to make such activities workable and efficient, States are also required to set up training programmes, establish airport security committees and to have contingency plans drawn up.

2.69International Co-operation. As an on-going commitment to security, each State is required to co-operate with other States in research and development of security systems and equipment which will better satisfy civil aviation security objectives.

2.70The Authority of the Commander. The aircraft commander may order or authorize the assistance of other crew members and may request and authorize, but not order, the assistance of passengers to restrain any person he is required to restrain. The aircraft commander may, when he has reasonable ground to believe that a person has committed, or is about to commit, an act which may or does jeopardize the safety of the aircraft or persons or property on board or which jeopardize good order and discipline on board, impose reasonable measures, which may include restraint, necessary:

•To protect the safety of the aircraft, or of persons or property on board

•To maintain good order and discipline on board

•To enable him to deliver such a person to competent authorities or to disembark him in accordance with provision of the Convention

Note: The PIC may request - but not require - the assistance of passengers in the restraint of an unruly passenger.

Organizations and Agreements International 2

In the case of destruction, loss, damage or delay of part of the cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the destruction, loss, damage or delay of a part of the cargo, or of an object contained therein, affects the value of other packages covered by the same airway bill, or the same receipt, or if they were not issued, by the same record preserved by the other means referred to in paragraph 2 of Article 4, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.

The foregoing provisions of paragraphs 1 and 2 of the Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such an act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.

The limits prescribed in Article 21 and in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest. The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later.

2.75Compensation in Case of Death or Injury of Passengers. (The Warsaw Convention as

amended by the Montreal Convention in 1999.) For damages arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.

The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100 000 Special Drawing Rights if the carrier proves that:

a. such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

b. such damage was solely due to the negligence or other wrongful act or omission of a third party.

The Rome Convention

2.76 The Rome Convention of 1952 dealt with damage caused by foreign aircraft to third parties on the ground. It permits a claimant to pursue a claim against a foreign operator through the Court in the state of residence. Any resulting judgement would then be enforceable in the state of the Operator.