THE SECOND SCHEDULE
[See Section 3(2)]
THE WARSAW CONVENTION AS AMENDED AT THE HAGUE, 1955 UNIFICATION OF CERTAIN RULES RELAITNG TO INTERNATIONAL CARRIAGE BY AIR.
SCOPE — DEFINITIONS
1. (1) These rules apply to all international carriage of persons, baggage 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 agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a trans-shipment, 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 the territory of another Slate, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of these rules.
(4) 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 had 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 the territory of the same State.
2. (1) These rules apply to carriage performed by the State or by, legally constituted public bodies provided it falls within the conditions laid down in Rule 1.
(2) These rules shall not apply to carriage of mail and postal packages.
DOCUMENTS OF CARRIAGE
PART I.—Passenger ticket
3. (1) In respect of the carriage of passengers a ticket shall be delivered containing:
(a) an indication of the places of departure and destination;
(b) if the places of departure and destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, and indication of at least one such stopping place;
(c) a notice to the effect that, if the passenger’s journey involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers for death or personal injury and in respect of loss of or damage to baggage.
(2) The passenger ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage. The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage which shall, none the less, be subject to these rules. Nevertheless, if, with the consent of the carrier, the passenger embarks without a passenger ticket having been delivered, or if the ticket does not include the notice required by sub-Rule 1 (c) of this rule, the carrier shall not be entitled to avail himself of the provisions of Rule 22.
PART II—Baggage check
4. (1) In respect of the carriage of registered baggage, a baggage check shall be delivered, which, unless combined with or incorporated in a passenger ticket which complies with the provisions of Rule 3, sub-rule (1), shall contain:
(a) an indication of the places of departure and destination ;
(b) if the places of departure and destination are within the territory of a single High contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;
(c) a notice to the effect that, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to baggage.
(2) The baggage check shall constitute prima facie evidence of the registration of the baggage and of the conditions of the contract of carriage. The absence, irregularity or loss of the baggage check does not affect the existence or the validity of the contract of carriage which shall, none the less, be subject to these rules. Nevertheless, if the carrier takes charge of the baggage without a baggage check having been delivered or if the baggage check, unless combined with or incorporated in the passenger ticket which complies with the provisions of Rule 3, sub-Rule 1 (c), does not include the notice required by sub-Rule 1 (c) of this rule, he shall not be entitled to avail himself of the provisions of Rule 22, sub-rule (2).
PART III.—Air Waybill
5. (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 waybill”; every consignor has the right to require the carrier to accept this document.
(2) The absence, irregularity or loss of this document docs not affect the existence or the validity of the contract of carriage which shall, subject to the provisions of Rule 9, be none the less, governed by these rules.
6. (1) The air waybill shall be made out by the consignor in three original parts 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 prior to the loading of the goods on board the aircraft.
(4) The signature of the carrier may be stamped; that of the consignor may be printed or stamped.
(5) If, at the request of the consignor, the carrier makes out the air waybill, he shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor.
7. The carrier of goods has the right to require the consignor to make out separate waybills when there is more than one package.
8. The air waybill shall contain:
(a) an indication of the places of departure and destination;
(b) if the places of departure and destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;
(c) a notice to the consignor to the effect that, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to goods.
9. If, with the consent of the carrier, goods are loaded on board the aircraft without an air waybill having been made out, or if the air waybill does not include the notice required by Rule 8, Paragraph (c), the carrier shall not be entitled to avail himself of the provisions of Rule 22, sub-rule (2).
10. (1) The consignor is responsible for the correctness of the particulars and statement relating to the goods which he inserts in the airway bill.
(2) The consignor shall indemnify the carrier against all damage suffered by him, or by any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements furnished by the consignor.
11. (1) The airway bill is prima facie evidence of the conclusion of the contract, of the receipt of the goods and of the conditions of carriage.
(2) The statement in the airway bill 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 airway bill to have been, checked by him in the presence of the consignor, or relate to the apparent condition of the goods.
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 airway bill, or by requiring them to be returned to the aerodrome of departure. He must not exercise this right of disposition in such a way as to prejudice the carrier or other consignor 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 airway bill 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 airway bill.
(4) The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Rule 13. Nevertheless, if the consignee declines to accept the airway bill or the goods, or if he cannot be communicated with, the consignor resumes his right of disposition.
13. (1) Except in the circumstances set out in Rule 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 airway bill 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 airway bill.
(2) Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee 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 is entitled to put into force against the carrier the rights which flow from the contract of carriage.
14. The consignor and the consignee can respectively enforce all the rights given them by Rules 12 and 13, each in his own name, whether he is acting in his own interest or in the interest of another, provided that he carrier out the obligations imposed by the contract.
15. (1) Rules 12, 13 and 14 do 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 of Rule 12, 13 and 14 can only be varied by express provision in the airway bill.
(3) Nothing in these rules prevents the issue of a negotiable airway bill:
Provided that an electronic document of carriage shall be deemed to be a negotiable instrument as defined in Section 13 of the Negotiable Instruments Act, 1881 (XXVI of 1881) and may be dealt with in any manner as a paper document of carriage and the Electronic Transactions Ordinance 2002 shall apply to such electronic document of carriage notwithstanding Section 31(I)(a) of the Electronic Transactions Ordinance 2002.
16. (1) The consignor must furnish such information and attach to the airway bill 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.
LIABILITY OF THE CARRIER
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.
18. (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 the preceding sub-rule 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 transshipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air.
19. The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods.
20. The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.
21. If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the Court may exonerate the carrier wholly or partly from his liability.
22. (1) In the carriage of persons the liability of the carrier for each passenger is limited to the sum of two hundred and fifty thousand francs. Where, in accordance with the law of the Court seized of the case, damages may be said payments shall not exceed two hundred and fifty thousand francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
(2) (a) In the carriage of registered baggage and of goods, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case as requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the passenger’s or consignor’s actual interest in delivery at destination.
(b) In the case of loss, damage or delay of part of registered baggage or goods, 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 loss, damage or delay of part of the registered baggage or goods, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same airway bill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.
(3) As regards objects of which the passenger takes-charge himself the liability of the carrier is limited to five thousand francs per passenger.
(4) The limits prescribed in this rule 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. 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.
(5) The sums mentioned in francs in this rule shall be deemed to refer to a currency unit consisting of sixty-five and a half miligrammes of gold of millesimal fineness nine hundred. These sums may be converted into national currencies in round figures. Conversion of the sums into national currencies other than gold shall, in case of judicial proceedings, be made according to the gold value of such currencies at the date of the judgment.
23. (1) Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in these rules shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Schedule.
(2) Sub-rule (1) of this rule shall not apply to provisions governing loss or damage resulting from the inherent defect, quality or vice of the goods carried.
24. (1) In the cases covered by Rules 18 and 19 any action for damages, however founded, can-only be brought subject to the conditions and limits set out in this Schedule.
(2) In the cases covered by Rule 17 the provisions of sub-rule (1) also apply, without prejudice to the questions as top who are the persons who have the right to bring suit and what are their respective rights.
25. The limits of liability specified in Rule 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his 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 act or omission of a servant or agent it is also proved that he was acting within the scope of his employment.
25A. (1) If an action is brought against a servant or agent of the carrier arising out of damage to which these rules relate, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the limits of liability which that carrier himself is entitled to invoke under Rule 22.
(2) The aggregate of the amounts recoverable from the carrier, his servants and agents, in that case, shall not exceed the said limits.
(3) The provisions of sub-rules (1) and (2) of this rule shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.
26. (1) Receipt by the person entitled to delivery of luggage or goods without complaint is prima facie evidence that the same have been delivered in good condition and in accordance with the document of carriage.
(2) In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, al the latest, within seven days from the date of receipt in the case of baggage and fourteen days from the date of receipt in the case of goods. In the case of delay the complaint must be made at the latest within twenty-one days from the date on which the baggage or goods have been placed at his disposal.
(3) Every complaint must be made in writing upon the document of carriage or by separate notice in writing dispatched within the times aforesaid.
(4) Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part.
27. In the case of the death of the person liable, an action for damages lies in accordance with these rules against those legally representing his estate.
28. An action for damages must be brought at the option of the plaintiff, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination.
29. The right of damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
30. (1) In the case of carriage to be performed by various successive carriers and falling within the definition set out in sub-rule (4) of Rule 1, each carrier who accepts passengers, baggage or goods is subjected to the rules set out in this Schedule, and is deemed to be one of the contracting parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under his supervision.
(2) In the case of carriage of this nature, the passenger or his representative can take action only against the carrier who performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.
(3) As regards baggage or goods, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier who performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.
PROVISIONS RELATING TO COMBINED CARRIAGE
31. (1) In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Schedule apply only to the carriage by air, provided that the carriage by air falls within the terms of Rule 1.
(2) Nothing in this Schedule shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other mode of carriage, provided that the provisions of this Schedule are observed as regards the carriage by air.
GENERAL AND FINAL PROVISIONS
32. Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Schedule, 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 goods arbitration clauses are allowed, subject to these rules, if the arbitration is to take place in the territory of one of the High Contracting Parties within one of the jurisdictions referred to in Rule 28.
33. Nothing contained in this Schedule shall prevent the carrier either from refusing to enter into any contract of carriage, or from making regulations which do not conflict with the provisions of this Schedule.
34. The provisions of rules 3 to 9 inclusive relating to documents of carriage shall not apply in the case of carriage performed in extraordinary circumstances outside the normal scope of an air carrier’s business.
35. The expression “days” when used in these rules means current days, not working days.
36. For the purposes of these rules the word “territory” means not only the metropolitan territory of a State but also all other territories for the foreign relations of which that State is responsible.
37. When a High Contracting Party has declared at the time of ratification of or of accession to the Convention that the first Paragraph of Article 2 of the Convention shall not apply to international carriage by air performed directly by the State, its colonies, protectorates or mandated territories or by any other territory under its sovereignty, suzerainty or authority these rules shall not apply to international carriage by air so performed.