CHAPTER 70:02
CARRIAGE BY AIR

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Text of Conventions and Protocol

   4.   Designation of High Contracting Parties

PART II
CARRIAGE TO WHICH THE WARSAW CONVENTION AND THE HAGUE PROTOCOL APPLY

   5.   Meaning of “the Convention” in Part II

   6.   Convention to have the force of law

   7.   Conversion of damages into Malawi currency

   8.   Provisions relating to proceedings for damages in respect of death of passenger

   9.   Liability of carrier for personal injuries

   10.   Liability of carrier to persons other than passengers

   11.   Certain sums not to be taken into account in assessment of damages

   12.   Contributory negligence

   13.   Jurisdiction in certain cases

   14.   Power to exclude aircraft used for military purposes

PART III
CARRIAGE TO WHICH THE WARSAW CONVENTION WITHOUT THE HAGUE PROTOCOL APPLIES

   15.   Meaning of “the Convention” in Part III

   16.   Warsaw Convention to have the force of law

   17.   Provisions of Part II applicable to this Part

PART IV
CARRIAGE TO WHICH THE GUADALAJARA CONVENTION APPLIES

   18.   Guadalajara Convention to have force of law

   19.   Construction of Parts II and III for purposes of Guadalajara Convention

PART V
OTHER CARRIAGE TO WHICH THIS ACT APPLIES

   20.   Meaning of “the amended Warsaw Convention” in Part V

   21.   Modification of Conventions for purposes of this Part

   22.   Powers of Minister

PART VI
MISCELLANEOUS

   23.   Liability of persons other than carrier

   24.   Regulations

   25.   Act to bind the Government

36 of 1981

An Act to make provision with respect to carriage by air and to give effect to the Warsaw Convention, the Hague Protocol and the Convention supplementary to the Warsaw Convention for the unification of certain rules relating to international carriage by air performed by a person other than the contracting carrier, for the repeal of the Carriage by Air Act and for matters incidental to and connected with the foregoing

[23RD JANUARY 1982]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Carriage by Air Act.

2.   Interpretation

   In this Act, unless the context otherwise requires—

   “the Guadalajara Convention” means the Convention supplemenary to the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air performed by a Person other than the Contracting Carrier opened for signature at Guadalajara on the 18th September, 1961;

   “the Hague Protocol” means the Protocol to amend the Warsaw Convention opened for signature at the Hague on the 28th September, 1955;

   “the Warsaw Convention” means the Convention for the Unification of Certain Rules relating to International Carriage by Air opened for signature at Warsaw on the 12th October, 1929, including the Additional Protocol to that Convention with reference to Article 2 of that Convention.

3.   Text of Conventions and Protocol

   (1) Subject to subsection (4), the text of the Warsaw Convention shall, for the purposes of this Act, be deemed to be the text in the English language set out in the First Schedule.

   (2) Subject to subsection (4), the text of the Hague Protocol shall, for the purposes of this Act, be deemed to be the text in the English language set out in the Second Schedule.

   (3) Subject to subsection (4), the text of the Guadalajara Convention shall, for the purposes of this Act, be deemed to be the text in the English language set out in the Third Schedule.

   (4) If any inconsistence is shown between the text set out in the First Schedule or the Second Schedule or the Third Schedule and the authentic text in the French language of the Warsaw Convention or the Hague Protocol or the Guadalajara Convention the authentic text shall prevail.

   (5) A certificate in writing under the hand of the Minister that a document to which the certificate is annexed is a true copy of the authentic text in the French language of the Warsaw Convention or the Hague Protocol or the Guadalajara Convention is conclusive evidence that the document is such a true copy.

4.   Designation of High Contracting Parties

   (1) The Minister may from time to time—

   (a)   certify who are the High Contracting Parties to the Warsaw Convention or the Hague Protocol, the territory in respect of which any such party is bound by the Convention and to what extent they have availed themselves of the provisions of the Additional Protocol to the Convention;

   (b)   certify who are the States that have or have not taken any action referred to in Article II, III, XIV, XV or XVI of the Guadalajara Convention and as to the particulars of any action so taken.

   (2) Any certificate issued under subsection (1) shall, except in so far as it has been superseded by a subsequent certificate, be conclusive evidence of the matters so certified.

PART II
CARRIAGE TO WHICH THE WARSAW CONVENTION AND THE HAGUE PROTOCOL APPLY

5.   Meaning of “the Convention” in Part II

   In this Part, “the Convention” means the Warsaw Convention and the Hague Protocol read and interpreted together as one single instrument in accordance with Article XIX of the Hague Protocol.

6.   Convention to have the force of law

   Subject to this Part the provisions of the Convention shall have the force of law in Malawi in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage.

7.   Conversion of damages into Malawi currency

   Any sum in francs mentioned in Article 22 of the Convention shall, for the purposes of an action against a carrier, be converted into Malawi currency at the rate of exchange prevailing on the date on which the amount of any damages to be paid by the carrier is ascertained by the court.

8.   Provisions relating to proceedings for damages in respect of death of passenger

   (1) The provisions of this section shall apply in relation to liability imposed by the Convention on a carrier in respect of the death of a passenger (including injury that resulted in death).

   (2) Subject to section 10, the liability under the Convention shall be in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that resulted in such death.

   (3) Subject to subsection (4), the liability shall be enforceable for the benefit of such of the members of the passenger’s family as sustained damage by reason of the death.

   (4) To the extent that the damages recoverable include loss of earnings or profits up to the date of death, or medical or hospital expenses paid or incurred by the passenger before his death or funeral expenses, the liability shall be enforceable for the benefit of the personal representative in his capacity as personal representative of the deceased.

   (5) For the purposes of subsection (3), the members of the passenger’s family may include the wife or husband, parents, step-parents, grandparents, brothers, sisters, half-brothers, half-sisters, children, step-children and grandchildren of the passenger and an adopted person shall be treated as being, or as having been, the legitimate child of his adopters.

   (6) An action to enforce the liability may be brought by the personal representative of a deceased passenger or by a person for whose benefit the liability is, under the preceding provisions of this section, enforceable, but only one action shall be brought in Malawi in respect of the death of any one passenger, and the action, by whomsoever brought, shall be for the benefit of all persons for whose benefit the liability is enforceable.

   (7) The damages recoverable in the action may include loss of earnings or profits up to the date of death and the reasonable expenses of the funeral of the passenger and medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of the passenger.

   (8) In awarding damages, the court is not limited to the financial loss resulting from the death of the passenger.

   (9) Subject to subsection (10), the amount recovered in the action, after deducting any costs not recoverable from the defendant, shall be divided amongst the persons entitled in such proportions as the court directs.

   (10) The court may at any stage of the proceedings make such order as appears to it to be just and equitable having regard to the provisions of the Convention limiting the liability of the carrier and to any proceedings which have been, or are likely to be, commenced against the carrier, whether within or outside Malawi.

9.   Liability of carrier for personal injuries to be exclusive of the other civil liability

   Subject to section 10, the liability of a carrier under the Convention in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, shall be in substitution for any civil liability of the carrier under any other law in respect of the injury.

10.   Liability of carrier to persons other than passengers

   Nothing in the Convention or in this Part shall be deemed to exclude any liability of a carrier—

   (a)   to indemnify an employer of a passenger in respect of liability of that employer under any written law providing for compensation to workmen or employees in respect of accidents arising out of or in the course of their employment; or

   (b)   to pay contribution to a tortfeasor who is liable in respect of the death of, or injury to, a passenger,

but this section does not operate to increase the limit of liability of a carrier in respect of a passenger beyond the amount fixed by or in accordance with the Convention.

11.   Certain sums not to be taken into account in assessment of damages

   In assessing damages in respect of liability under the Convention, there shall not be taken into account by way of reduction of the damages—

   (a)   a sum paid or payable on the death of, or personal injury to a passenger under contract of insurance;

   (b)   a sum paid or payable out of a superannuation, provident or like fund, or by way of benefit from a friendly society, benefit society or trade union;

   (c)   any sum in respect of a pension, social service benefit or repatriation benefit paid or payable, consequent upon the death or injury, by any government or person;

   (d)   in the case of death, any sum in respect of the acquisition consequent upon the death by a spouse or child of the deceased, of, or of an interest in, a dwelling at any time used as the home of that spouse or child, or of, or of an interest in, the household contents of any such dwelling; or

   (e)   in the case of death, a premium that would have become payable under a contract of insurance in respect of the life of the deceased passenger if he had lived after the time at which he died.

12.   Contributory negligence

   (1) Effect shall be given to Article 21 of the Warsaw Convention in accordance with this section.

   (2) If, in an action against a carrier under the Convention, the carrier proves that the damage was caused or contributed to by the negligence of the passenger or the consignor, the damages recoverable shall be assessed in accordance with this section.

   (3) The Court shall first determine the damages that would have been recoverable if there were no limit on the amount of those damages fixed by or in accordance with the Convention and there had been no negligence on the part of the passenger or consignor.

   (4) The Court shall then reduce the damages under subsection (3) as it thinks just and equitable having regard to the share of the passenger or the consignor in the responsibility for the damage.

   (5) If the damages, reduced in accordance with subsection (4), exceed the amount of the maximum liability of the carrier fixed by or in accordance with the Convention, the Court shall further reduce the damages to that amount.

13.   Jurisdiction in certain cases

   (1) A Party to the Convention which has not availed itself of the provisions of the Additional Protocol to the Warsaw Convention with reference to Article 2 of that Convention shall, for the purpose of an action under the Convention brought in a court in Malawi to enforce a claim in respect of carriage undertaken by that Party, be deemed to have submitted to the jurisdiction of that Court.

   (2) Nothing in subsection (1) shall be deemed to authorize the issue of execution against the property of a Party to the Convention.

14.   Power to exclude aircraft used for military purposes

   (1) The Convention shall not apply to carriage of persons, cargo or baggage for the military authorities of a State to which this section applies in aircraft registered in that State, if the entire carrying capacity of the aircraft has been reserved by or on behalf of those authorities.

   (2) The Minister may, from time to time, by order published in the Gazette, direct that this section shall apply, or shall cease to apply, to Malawi or any other State specified in the notice.

PART III
CARRIAGE TO WHICH THE WARSAW CONVENTION WITHOUT THE HAGUE PROTOCOL APPLIES

15.   Meaning of “the Convention” in Part III

   In this Part, “the Convention” means the Warsaw Convention as unamended and unaffected by the Hague Protocol.

16.   Warsaw Convention to have the force of law

   Subject to this Part, the provisions of the Convention shall have the force of law in the Republic in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage.

17.   Provisions of Part II applicable to this Part

   The provisions of sections 8 to 14 inclusive apply for the purpose of this Part.

PART IV
CARRIAGE TO WHICH THE GUADALAJARA CONVENTION APPLIES

18.   Guadalajara Convention to have the force of law

   The provisions of the Guadalajara Convention shall, subject to Parts II and III as modified and affected by section 19, have the force of law in Malawi in relation to any carriage by air to which that Convention applies, irrespective of the nationality of the aircraft performing that carriage.

19.   Construction of Parts II and III for purposes of Guadalajara Convention

   In relation to carriage to which the Guadalajara Convention applies, references in Part II (other than section 6) and Part III (other than section 16) to “the Convention” shall be read and construed as including references to those provisions of the Guadalajara Convention which have the force of law by virtue of this Part.

PART V
OTHER CARRIAGE TO WHICH THIS ACT APPLIES

20.   Meaning of “the amended Warsaw Convention” in Part V

   In this Part, “the amended Warsaw Convention” means the Warsaw and the Hague Protocol read and interpreted together as one single instrument in accordance with Article XIX of the Hague Protocol.

21.   Modifications of Conventions for purposes of this Part

   Subject to the provisions of section 22, the provisions of the amended Warsaw Convention and of the Guadalajara Convention having the force of law in Malawi as adopted and modified in the Fourth and Fifth Schedules respectively shall apply to all carriage by air, not being international carriage as defined in Article 1 of the Second Schedule.

22.   Powers of Minister

   The Minister may, by order published in the Gazette, direct that the provisions of this Part shall not apply, or shall not apply to a specified class of carriage by air, and any such direction may be expressed to be, and if so expressed shall take effect, subject to any conditions or limitations which in the circumstances of the case appear to the Minister to be required.

PART VI
MISCELLANEOUS

23.   Liability of persons other than carrier

   (1) In an action for damages arising out of the death or bodily injury of a passenger by air occasioned by the negligence of any person other than the carrier, its servants or agents, the sum awarded shall not exceed K20,000 in addition to the costs of the action and, in making its award, the court shall take into consideration any sum paid by the carrier.

   (2) The provisions of subsections (3), (4), (5), (6), (7) and (8) of section 8 apply for the purposes of this section.

24.   Regulations

   The Minister may, by notice published in the Gazette, make regulations, not inconsistent with this Act, which are necessary or convenient to be prescribed for giving effect to this Act, the Warsaw Convention, the Warsaw Convention as amended and affected by the Hague Protocol or the Guadalajara Convention.

25.   Act to bind the Government

   This Act shall bind the Government.

FIRST SCHEDULE

(SECTION 3 (1))

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR

CHAPTER I. SCOPE DEFINITIONS

Article 1

   1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.

   2. For the purposes of this Convention 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 transhipment, 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 a territory subject to the sovereignty, suzerainty, mandate or authority of another Power, even though that Power is not a party to this Convention. A carriage without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party is not deemed to be international for the purposes of this Convention.

   3. Carriage to be performed by several successive air carriers is deemed, for the purposes of this Convention, 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 a territory subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party.

Article 2

   1. The Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in Article 1.

   2. This Convention does not apply to carriage performed under the terms of any internationapostinacl v eltonon.

CHAPTER II. DOCUMENTS OF CARRIAGE

SECTION 1. PASSENGER TICKET

Article 3

   1. For the carriage of passengers the carrier must deliver a passenger ticket which shall contain the following particulars—

   (a)   the place and date of issue;

   (b)   the place of departure and of destination;

   (c)   the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right, the alteration shall not have the effect of depriving the carriage of its international character;

   (d)   the name and address of the carrier or carriers;

   (e)   a statement that the carriage is subject to the rules relating to liability established by this Convention.

   2. The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract or carriage, which shall none the less be subject to the rules of this Convention. Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this Convention which exclude or limit his liability.

SECTION 2. BAGGAGE CHECK

Article 4

   1. For the carriage of baggage, other than small personal objects of which the passenger takes charge himself, the carrier must deliver a baggage check.

   2. The baggage check shall be made out in duplicate, one part for the passenger and the other part for the carrier.

   3. The baggage check shall contain the following particulars—

   (a)   the place and date of issue;

   (b)   the place of departure and of destination;

   (c)   the name and address of the carrier or carriers;

   (d)   the number of the passenger ticket;

   (e)   a statement that delivery of the baggage will be made to the bearer of the baggage check;

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.