(7)--2009 General Risk Convention（英文）航空法概论.pdf

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1、 DCCD Doc No.42 1/5/09 INTERNATIONAL CONFERENCE ON AIR LAW (Montral,20 April to 2 May 2009)CONVENTION ON COMPENSATION FOR DAMAGE CAUSED BY AIRCRAFT TO THIRD PARTIES CONVENTION ON COMPENSATION FOR DAMAGE CAUSED BY AIRCRAFT TO THIRD PARTIES THE STATES PARTIES TO THIS CONVENTION,RECOGNIZING the need to

2、 ensure adequate compensation for third parties who suffer damage resulting from events involving an aircraft in flight;RECOGNIZING the need to modernize the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface,Signed at Rome on 7 October 1952,and the Protocol to Amend the

3、 Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface,Signed at Rome on 7 October 1952,Signed at Montreal on 23 September 1978;RECOGNIZING the importance of ensuring protection of the interests of third-party victims and the need for equitable compensation,as well as the n

4、eed to enable the continued stability of the aviation industry;REAFFIRMING the desirability of the orderly development of international air transport operations and the smooth flow of passengers,baggage and cargo in accordance with the principles and objectives of the Convention on International Civ

5、il Aviation,done at Chicago on 7 December 1944;and CONVINCED that collective State action for further harmonization and codification of certain rules governing the compensation of third parties who suffer damage resulting from events involving aircraft in flight through a new Convention is the most

6、desirable and effective means of achieving an equitable balance of interests;HAVE AGREED AS FOLLOWS:Chapter I Principles Article 1 Definitions For the purposes of this Convention:(a)an“act of unlawful interference”means an act which is defined as an offence in the Convention for the Suppression of U

7、nlawful Seizure of Aircraft,Signed at The Hague on 16 December 1970,or the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,Signed at Montreal on 23 September 1971,and any amendment in force at the time of the event;DCCD Doc No.42 2 (b)an“event”occurs when damage

8、is caused by an aircraft in flight other than as a result of an act of unlawful interference;(c)an aircraft is considered to be“in flight”at any time from the moment when all its external doors are closed following embarkation or loading until the moment when any such door is opened for disembarkati

9、on or unloading;(d)“international flight”means any flight whose place of departure and whose intended destination are situated within the territories of two States,whether or not there is a break in the flight,or within the territory of one State if there is an intended stopping place in the territo

10、ry of another State;(e)“maximum mass”means the maximum certificated take-off mass of the aircraft,excluding the effect of lifting gas when used;(f)“operator”means the person who makes use of the aircraft,provided that if control of the navigation of the aircraft is retained by the person from whom t

11、he right to make use of the aircraft is derived,whether directly or indirectly,that person shall be considered the operator.A person shall be considered to be making use of an aircraft when he or she is using it personally or when his or her servants or agents are using the aircraft in the course of

12、 their employment,whether or not within the scope of their authority;(g)“person”means any natural or legal person,including a State;(h)“State Party”means a State for which this Convention is in force;and (i)“third party”means a person other than the operator,passenger or consignor or consignee of ca

13、rgo.Article 2 Scope 1.This Convention applies to damage to third parties which occurs in the territory of a State Party caused by an aircraft in flight on an international flight,other than as a result of an act of unlawful interference.2.If a State Party so declares to the Depositary,this Conventio

14、n shall also apply where an aircraft in flight other than on an international flight causes damage in the territory of that State,other than as a result of an act of unlawful interference.3.For the purposes of this Convention:(a)damage to a ship in or an aircraft above the High Seas or the Exclusive

15、 Economic Zone shall be regarded as damage occurring in the territory of the State in which it is registered;however,if the operator of the aircraft has its principal place of business in the territory of a State other than the State of Registry,the damage to the aircraft shall be regarded as having

16、 occurred in the territory of the State in which it has its principal place of business;and (b)damage to a drilling platform or other installation permanently fixed to the soil in the Exclusive Economic Zone or the Continental Shelf shall be regarded as having occurred in the territory of the State

17、which has jurisdiction over such platform or installation in 3 DCCD Doc No.42 accordance with international law including the United Nations Convention on the Law of the Sea,done at Montego Bay on 10 December 1982.4.This Convention shall not apply to damage caused by State aircraft.Aircraft used in

18、military,customs and police services shall be deemed to be State aircraft.Chapter II Liability of the operator and related issues Article 3 Liability of the operator 1.The operator shall be liable for damage sustained by third parties upon condition only that the damage was caused by an aircraft in

19、flight.2.There shall be no right to compensation under this Convention if the damage is not a direct consequence of the event giving rise thereto,or if the damage results from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations.3.Damages

20、due to death,bodily injury and mental injury shall be compensable.Damages due to mental injury shall be compensable only if caused by a recognizable psychiatric illness resulting either from bodily injury or from direct exposure to the likelihood of imminent death or bodily injury.4.Damage to proper

21、ty shall be compensable.5.Environmental damage shall be compensable,in so far as such compensation is provided for under the law of the State Party in the territory of which the damage occurred.6.No liability shall arise under this Convention for damage caused by a nuclear incident as defined in the

22、 Paris Convention on Third Party Liability in the Field of Nuclear Energy(29 July 1960)or for nuclear damage as defined in the Vienna Convention on Civil Liability for Nuclear Damage(21 May 1963),and any amendment or supplements to these Conventions in force at the time of the event.7.Punitive,exemp

23、lary or any other non-compensatory damages shall not be recoverable.8.An operator who would otherwise be liable under the provisions of this Convention shall not be liable if the damage is the direct consequence of armed conflict or civil disturbance.Article 4 Limit of the operators liability 1.The

24、liability of the operator arising under Article 3 shall not exceed for an event the following limit based on the mass of the aircraft involved:(a)750 000 Special Drawing Rights for aircraft having a maximum mass of 500 kilogrammes or less;(b)1 500 000 Special Drawing Rights for aircraft having a max

25、imum mass of more than 500 kilogrammes but not exceeding 1 000 kilogrammes;DCCD Doc No.42 4 (c)3 000 000 Special Drawing Rights for aircraft having a maximum mass of more than 1 000 kilogrammes but not exceeding 2 700 kilogrammes;(d)7 000 000 Special Drawing Rights for aircraft having a maximum mass

26、 of more than 2 700 kilogrammes but not exceeding 6 000 kilogrammes;(e)18 000 000 Special Drawing Rights for aircraft having a maximum mass of more than 6 000 kilogrammes but not exceeding 12 000 kilogrammes;(f)80 000 000 Special Drawing Rights for aircraft having a maximum mass of more than 12 000

27、kilogrammes but not exceeding 25 000 kilogrammes;(g)150 000 000 Special Drawing Rights for aircraft having a maximum mass of more than 25 000 kilogrammes but not exceeding 50 000 kilogrammes;(h)300 000 000 Special Drawing Rights for aircraft having a maximum mass of more than 50 000 kilogrammes but

28、not exceeding 200 000 kilogrammes;(i)500 000 000 Special Drawing Rights for aircraft having a maximum mass of more than 200 000 kilogrammes but not exceeding 500 000 kilogrammes;(j)700 000 000 Special Drawing Rights for aircraft having a maximum mass of more than 500 000 kilogrammes.2.If an event in

29、volves two or more aircraft operated by the same operator,the limit of liability in respect of the aircraft with the highest maximum mass shall apply.3.The limits in this Article shall only apply if the operator proves that the damage:(a)was not due to its negligence or other wrongful act or omissio

30、n or that of its servants or agents;or (b)was solely due to the negligence or other wrongful act or omission of another person.Article 5 Priority of compensation If the total amount of the damages to be paid exceeds the amounts available according to Article 4,paragraph 1,the total amount shall be a

31、warded preferentially to meet proportionately the claims in respect of death,bodily injury and mental injury,in the first instance.The remainder,if any,of the total amount payable shall be awarded proportionately among the claims in respect of other damage.Article 6 Events involving two or more oper

32、ators 1.Where two or more aircraft have been involved in an event causing damage to which this Convention applies,the operators of those aircraft are jointly and severally liable for any damage suffered by a third party.5 DCCD Doc No.42 2.If two or more operators are so liable,the recourse between t

33、hem shall depend on their respective limits of liability and their contribution to the damage.3.No operator shall be liable for a sum in excess of the limit,if any,applicable to its liability.Article 7?Court costs and other expenses 1.The court may award,in accordance with its own law,the whole or p

34、art of the court costs and of the other expenses of the litigation incurred by the claimant,including interest.2.Paragraph 1 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 operator has offered in writi

35、ng to the claimant within a period of six months from the date of the event causing the damage,or before the commencement of the action,whichever is the later.Article 8 Advance payments If required by the law of the State where the damage occurred,the operator shall make advance payments without del

36、ay to natural persons who may be entitled to claim compensation under this Convention,in order to meet their immediate economic needs.Such advance payments shall not constitute a recognition of liability and may be offset against any amount subsequently payable as damages by the operator.Article 9 I

37、nsurance 1.Having regard to Article 4,States Parties shall require their operators to maintain adequate insurance or guarantee covering their liability under this Convention.2.An operator may be required by the State Party in or into which it operates to furnish evidence that it maintains adequate i

38、nsurance or guarantee.In doing so,the State Party shall apply the same criteria to operators of other States Parties as it applies to its own operators.Chapter III Exoneration and recourse Article 10 Exoneration If the operator proves that the damage was caused,or contributed to,by the negligence or

39、 other wrongful act or omission of a claimant,or the person from whom he or she derives his or her rights,the operator shall be wholly or partly exonerated from its liability to that claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage.DCCD Doc

40、No.42 6 Article 11 Right of recourse Subject to Article 13,nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any person.Chapter IV Exercise of remedies and related provisions Article 12 Exclusi

41、ve remedy 1.Any action for compensation for damage to third parties caused by an aircraft in flight brought against the operator,or its servants or agents,however founded,whether under this Convention or in tort or otherwise,can only be brought subject to the conditions set out in this Convention wi

42、thout prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.2.Article 3,paragraphs 6,7 and 8,shall apply to any other person from whom the damages specified in those paragraphs would otherwise be recoverable or compensable,whether u

43、nder this Convention or in tort or otherwise.Article 13 Exclusion of liability Neither the owner,lessor or financier retaining title or holding security of an aircraft,not being an operator,nor their servants or agents,shall be liable for damages under this Convention or the law of any State Party r

44、elating to third party damage.Article 14 Conversion of Special Drawing Rights The sums mentioned in terms of Special Drawing Right in this Convention shall be deemed to refer to the Special Drawing Right as defined by the International Monetary Fund.Conversion of the sums into national currencies sh

45、all,in case of judicial proceedings,be made according to the value of such currencies in terms of the Special Drawing Right at the date of the judgement.The value in a national currency shall be calculated in accordance with the method of valuation applied by the International Monetary Fund for its

46、operations and transactions.The value in a national currency,of a State Party which is not a Member of the International Monetary Fund,shall be calculated in a manner determined by that State to express in the national currency of the State Party as far as possible the same real value as the amounts

47、 in Article 4,paragraph 1.Article 15 Review of limits 1.Subject to paragraph 2 of this Article,the sums prescribed in Article 4,paragraph 1,shall be reviewed by the Depositary by reference to an inflation factor which corresponds to the accumulated rate of inflation since the previous revision or in

48、 the first instance since the date of entry into force of this Convention.The measure of the rate of inflation to be used in determining the inflation factor shall be the weighted average of the annual rates of increase or decrease in the Consumer Price Indices of the States whose currencies compris

49、e the Special Drawing Right mentioned in Article 14.7 DCCD Doc No.42 2.If the review referred to in the preceding paragraph concludes that the inflation factor has exceeded 10 per cent,the Depositary shall notify the States Parties of a revision of the limits of liability.Any such revision shall bec

50、ome effective six months after the notification to the States Parties,unless a majority of the States Parties register their disapproval.The Depositary shall immediately notify all States Parties of the coming into force of any revision.Article 16 Forum 1.Subject to paragraph 2 of this Article,actio