Voorwaardes van lugvervoer : 'n oorsig van die aanspreeklikheid van die Suid-Afrikaanse lugvervoerder
Steyn, Elisabeth Gertruida Petronella
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In the South African law of carriage by air, different rules apply according to whether the carriage is (1) international carriage to which the Carriage by Air Act 17 of 1946 applies, or (2) either international carriage to which that Act does not apply, or purely domestic carriage, that is performed wholly within the borders of the Republic. International carriage not falling under (1) above, and purely domestic carriage, are governed by the common law except to the extent that the rule of the common law have been modified by agreement by the conditions of carriage of the individual carrier concerned. However, international carriage under (1) above is governed partly by the rules of certain international conventions which have been incorporated by legislation into our domestic law, and partly by agreements between intentional air carriers. The following international instruments and agreements have a bearing on this class of international carriage: (a) the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, dating form 1929, which firmly established and elaborated, as one of its major tenets, the principle of the air carrier's liability for damage caused to passengers, baggage and goods, and also for damage caused by delay; (b) the Hague Protocol of 1955. It was added to the Warsaw Convention with the aim of adapting it to the demands of modem transport; (c) the Guadalajara Convention of 1961 for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier. This amendment took the form of a Supplementary Convention because it was concluded to deal with an entirely new subject-matter, namely chartering; (d) the Montreal Agreement, an agreement subscribed to by a number of international air carriers whereby the participating carriers voluntarily undertake to assume a more extensive liability for passenger death or injury occurring on international journeys to, from, or via the United States of America, than that which they would have been subject under the Warsaw Convention as amended by the Hague Protocol. As seen above, the Warsaw Convention became the first international legal instrument to establish the principles of liability related to carriage by air. However, the Warsaw Convention has proved insufficient for the requirements of rapid-developing air transport and travel, and as aviation began expanding on a large scale, the Warsaw Convention had to be amended. These amendments however, present problems since some States are only a member to the Warsaw Convention and others are members to both the Warsaw Convention and all its amendments. This in effect means that the unamended and amended conventions co-exist. As a result, the amount of limited liability or compensation for damages caused by aircraft accidents in the Warsaw is controversial and questionable, and no longer provides a uniform body of legal rules. The answer to the inherent flaws of the Warsaw regime is the Montreal Convention of 1999. This Convention evolved from the original Warsaw Convention, but is now no longer a convention for carriers. It is a convention for consumers/passengers. The Montreal Convention aims to modernise the liability regime, to consolidate the Warsaw Convention and related instruments, to ensure orderly development of international air transport operations, and to, once again, ensure uniformity and universality. The Montreal Convention however, will only come into force after 30 countries have ratified it. Since only one country has currently ratified the Convention, it can still take a few years before uniformity is restored. This however does not stop South Africa from following in the footsteps of the European Union by the promulgation of legislation which would give the Montreal Convention immediate effect in South Africa as soon as the Convention came into force.
- ETD@PUK