(88)--（英文）2009 Unlawful Interference C航空法概论航空法概论.pdf

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1、 DCCD Doc No.43 1/5/09 INTERNATIONAL CONFERENCE ON AIR LAW (Montral,20 April to 2 May 2009)CONVENTION ON COMPENSATION FOR DAMAGE TO THIRD PARTIES,RESULTING FROM ACTS OF UNLAWFUL INTERFERENCE INVOLVING AIRCRAFT CONVENTION ON COMPENSATION FOR DAMAGE TO THIRD PARTIES,RESULTING FROM ACTS OF UNLAWFUL INT

2、ERFERENCE INVOLVING AIRCRAFT THE STATES PARTIES TO THIS CONVENTION,RECOGNIZING the serious consequences of acts of unlawful interference with aircraft which cause damage to third parties and to property;RECOGNIZING that there are currently no harmonized rules relating to such consequences;RECOGNIZIN

3、G the importance of ensuring protection of the interests of third-party victims and the need for equitable compensation,as well as the need to protect the aviation industry from the consequences of damage caused by unlawful interference with aircraft;CONSIDERING the need for a coordinated and concer

4、ted approach to providing compensation to third-party victims,based on cooperation between all affected parties;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

5、objectives of the Convention on International Civil Aviation,done at Chicago on 7 December 1944;and CONVINCED that collective State action for harmonization and codification of certain rules governing compensation for the consequences of an event of unlawful interference with aircraft in flight thro

6、ugh a new Convention is the most 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 Co

7、nvention for the Suppression of Unlawful 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 Montral on 23 September 1971,and any amendment in force at the time of the event;(b)an“event”occu

8、rs when damage results from an act of unlawful interference involving an aircraft in flight;DCCD Doc No.43 2 (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

9、for disembarkation 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 plac

10、e in the territory 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 pe

11、rson from whom the 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

12、in the course of their employment,whether or not within the scope of their authority.The operator shall not lose its status as operator by virtue of the fact that another person commits an act of unlawful interference;(g)“person”means any natural or legal person,including a State;(h)“senior manageme

13、nt”means members of an operators supervisory board,members of its board of directors,or other senior officers of the operator who have the authority to make and have significant roles in making binding decisions about how the whole of or a substantial part of the operators activities are to be manag

14、ed or organized;(i)“State Party”means a State for which this Convention is in force;and (j)“third party”means a person other than the operator,passenger or consignor or consignee of cargo.Article 2 Scope 1.This Convention applies to damage to third parties which occurs in the territory of a State Pa

15、rty caused by an aircraft in flight on an international flight,as a result of an act of unlawful interference.This Convention shall also apply to such damage that occurs in a State non-Party as provided for in Article 28.2.If a State Party so declares to the Depositary,this Convention shall also app

16、ly to damage to third parties that occurs in the territory of that State Party which is caused by an aircraft in flight other than on an international flight,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

17、 or the Exclusive 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 r

18、egarded as having occurred in the territory of the State in which it has its principal place of business;and 3 DCCD Doc No.43 (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 occur

19、red in the territory of the State Party which has jurisdiction over such platform or installation in 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 air

20、craft.Aircraft used in 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 to compensate for damage within the scope of this Convention upon condition only

21、 that the damage was caused by an aircraft in 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.3.Damages due to death,bodily injury and mental injury shall be compensable.Damages due to mental injury sha

22、ll 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 property shall be compensable.5.Environmental damage shall be compensable,in so far as such compensation

23、 is provided for under the law of the State 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 Paris Convention on Third Party Liability in the Field of Nuclear Energy(29 July 1960)or for nuclear da

24、mage 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,exemplary or any other non-compensatory damages shall not be recoverable.Article 4 Limit of the operators lia

25、bility 1.The 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

26、 having a maximum mass of more than 500 kilogrammes but not exceeding 1 000 kilogrammes;DCCD Doc No.43 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

27、 maximum mass 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

28、 than 12 000 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 kil

29、ogrammes but 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.I

30、f an event involves 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.Article 5 Events involving two or more operators 1.Where two or more aircraft have been involved in an event causing damage to which this

31、 Convention applies,the operators of those aircraft are jointly and severally liable for any damage suffered by a third party.2.If two or more operators are so liable,the recourse between them shall depend on their respective limits of liability and their contribution to the damage.3.No operator sha

32、ll be liable for a sum in excess of the limit,if any,applicable to its liability.Article 6 Advance payments If required by the law of the State where the damage occurred,the operator shall make advance payments without delay to natural persons who may be entitled to claim compensation under this Con

33、vention,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 7 Insurance 1.Having regard to Article 4,States Parties shall require their opera

34、tors to maintain adequate insurance or guarantee covering their liability under this Convention.If such insurance or guarantee is not 5 DCCD Doc No.43 available to an operator on a per event basis,the operator may satisfy this obligation by insuring on an aggregate basis.States Parties shall not req

35、uire their operators to maintain such insurance or guarantee to the extent that they are covered by a decision made pursuant to Article 11,paragraph 1(e)or Article 18,paragraph 3.2.An operator may be required by the State Party in or into which it operates to furnish evidence that it maintains adequ

36、ate insurance 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.Proof that an operator is covered by a decision made pursuant to Article 11,paragraph 1(e)or Article 18,paragraph 3,shall be sufficient evidenc

37、e for the purpose of this paragraph.Chapter III The International Civil Aviation Compensation Fund Article 8 The constitution and objectives of the International Civil Aviation Compensation Fund 1.An organization named the International Civil Aviation Compensation Fund,hereinafter referred to as“the

38、 International Fund”,is established by this Convention.The International Fund shall be made up of a Conference of Parties,consisting of the States Parties,and a Secretariat headed by a Director.2.The International Fund shall have the following purposes:(a)to provide compensation for damage according

39、 to Article 18,paragraph 1,pay damages according to Article 18,paragraph 3,and provide financial support under Article 28;(b)to decide whether to provide supplementary compensation to passengers on board an aircraft involved in an event,according to Article 9,paragraph(j);(c)to make advance payments

40、 under Article 19,paragraph 1,and to take reasonable measures after an event to minimize or mitigate damage caused by an event,according to Article 19,paragraph 2;and (d)to perform other functions compatible with these purposes.3.The International Fund shall have its seat at the same place as the In

41、ternational Civil Aviation Organization.4.The International Fund shall have international legal personality.5.In each State Party,the International Fund shall be recognized as a legal person capable under the laws of that State of assuming rights and obligations,entering into contracts,acquiring and

42、 disposing of movable and immovable property and of being a party in legal proceedings before the courts of that State.Each State Party shall recognize the Director of the International Fund as the legal representative of the International Fund.6.The International Fund shall enjoy tax exemption and

43、such other privileges as are agreed with the DCCD Doc No.43 6 host State.Contributions to the International Fund and its funds,and any proceeds from them,shall be exempted from tax in all States Parties.7.The International Fund shall be immune from legal process,except in respect of actions relating

44、 to credits obtained in accordance with Article 17 or to compensation payable in accordance with Article 18.The Director of the International Fund shall be immune from legal process in relation to acts performed by him or her in his or her official capacity.The immunity of the Director may be waived

45、 by the Conference of Parties.The other personnel of the International Fund shall be immune from legal process in relation to acts performed by them in their official capacity.The immunity of the other personnel may be waived by the Director.8.Neither a State Party nor the International Civil Aviati

46、on Organization shall be liable for acts,omissions or obligations of the International Fund.Article 9 The Conference of Parties The Conference of Parties shall:(a)determine its own rules of procedure and,at each meeting,elect its officers;(b)establish the Regulations of the International Fund and th

47、e Guidelines for Compensation;(c)appoint the Director and determine the terms of his or her employment and,to the extent this is not delegated to the Director,the terms of employment of the other employees of the International Fund;(d)delegate to the Director,in addition to powers given in Article 1

48、1,such powers and authority as may be necessary or desirable for the discharge of the duties of the International Fund and revoke or modify such delegations of powers and authority at any time;(e)decide the period for,and the amount of,initial contributions and fix the contributions to be made to th

49、e International Fund for each year until the next meeting of the Conference of Parties;(f)in the case where the aggregate limit on contributions under Article 14,paragraph 3,has been applied,determine the global amount to be disbursed to the victims of all events occurring during the time period wit

50、h regard to which Article 14,paragraph 3,was applied;(g)appoint the auditors;(h)vote budgets and determine the financial arrangements of the International Fund including the Guidelines on Investment,review expenditures,approve the accounts of the International Fund,and consider the reports of the au