AIR LAW

DR. RAJU KD

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HISTORY

 In 1880, the Institut de Droit International, a private association of

eminent jurists from many countries, included aviation on the
agenda of its convention held in Oxford, England.
 The first successful flight of a powered controlled and sustained
flying machine by Orville and Wilbur Wright on 17 December 1903
was the beginning of the evolution of flight and civil aviation.

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HISTORY

 the first important conference on an international air

law code was convened in Paris in 1910.
 This conference was attended by 18 European States
and a number of basic principles governing aviation
were laid down.
 The first world war made a tremendous change in
technical advancements.

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HISTORY

 Paris Peace Conference of 1919 - Aviation was an

important subject and it was entrusted to a
special Aeronautical Commission, which hat its
origin in the Inter-Allied Aviation Committee
created in 1917.
 in 1919, two British airmen, Alcock and Brown,
made the first West-East crossing of the North
Atlantic from Newfoundland to Ireland and the
"R-34", a British dirigible made a round trip flight
from Scotland to New York and back.

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HISTORY
 Paris Peace Conference and was ultimately ratified by 38 States. This
Convention consisted of 43 articles that dealt with all technical, operational
and organizational aspects of civil aviation and also foresaw the creation of
an International Commission for Air Navigation (ICAN) to monitor
developments in civil aviation and to propose measures to States to keep
abreast of developments.
 In 1919, six European airlines founded in The Hague, Netherlands, the
International Air Traffic Association (IATA) to help airlines standardize their
paperwork and passenger tickets and also help airlines compare technical
procedures.
 The modern IATA (International Air Transport Association), founded in 1945
in Havana, Cuba, is the successor to the International Air Traffic Association.

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 Preamble: development of international civil aviation can greatly

help to create and preserve friendship and understanding among
the nations and peoples of the world.

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THEORIES

 Airspace above territories and territorial waters.

 Right of innocent passage over the territory for
foreign civil aircraft.
 Airspace above high seas is free and open to all.
 State sovereignty into upwards
 State practice an defence point of view

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RIGHT OVER AIR
SPACE
 1919 Paris Convention for the Regulation of Aerial Navigation.
 Recognised the sovereignty over land and territorial sea.
 Nicaragua case - ‘the principle of respect for territorial sovereignty is
also directly infringed by the unauthorized over flight of a state’s
territory by aircraft belonging to or under the control of the
government of another state.’ ICJ Reports 1986.
 1944 – Chicago Conference – Chicago Convention on International
Civil Aviation.
 No right of scheduled international passage over state airspaces
without prior consent.

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EARLY DEVELOPMENTS

 Nationality of the flight were it is registered.

 Chicago International Air Services Transit Agreement, 1944
 Picking up passengers, mail and cargo
 US withdraw from it in 1946
 UK – US Bermuda Agreement of 1946
 The formation of ICAO – UN specialised agency for co-operation
between states upon technical and administrative co-operation.

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ICAO

 Objective is to develop the principles and techniques of international air

navigation and to foster the planning and development of international air
transport.
 Chicago Conference which formed the ICAO reaffirmed the 1919
convention with regard to sovereignty of the state over its airspace and
need for permission to operate scheduled international flights.
 ICAO – 190 contracting parties
 UK denounced the Bermuda Agreement in 1976.
 1977 – a new Agreement Bermuda II was signed with USA.
 ICAO – IATA – International Air Transport Association.

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ICAO

 Planning and development of international air navigation.

 International standards and recommended practices.
 Only concerned with civil aircraft. State, military, customs and
police aircrafts are excluded.
 Encourage the safe and orderly growth of international civil
aviation throughout the world.
 Encourage the development of airways, airports, air navigation
facilities for international civil aviation.

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ICAO

 Promote safety of flight in international air navigation and

 Promote the development of all aspects of international civil
aeronautics.
 A.68 – Report to ICAO about the designation of all air routes and
airports in order to streamline flow of air traffic.
 A transit agreement was entered, Air Services Transit Agreement,
1945. - 129 parties.

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AIR FREEDOMS

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AIR FREEDOMS

 1. The freedom to overfly a foreign country (A) from a home

country en-route to another (B) without landing. Also called the
transit freedom.
 2. The freedom to stop in a foreign country for non traffic purposes
(technical/refueling purpose only).
 A flight from a home country can land in another country (A) for
purposes other than carrying passengers, such as refueling,
maintenance or emergencies.
 The final destination is country B.

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NEGOTIATED
FREEDOMS
 Third Freedom. The freedom to carry traffic from a home country to
another country (A) for purpose of commercial services.
 Fourth Freedom. The freedom to pick up traffic from another
country (A) to a home country for purpose of commercial services.
 Third and Fourth Freedoms are the basis for direct commercial
services, providing the rights to load and unload passengers, mail
and freight in another country.

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AIR FREEDOMS
 Fifth Freedom. The freedom to carry traffic between two foreign countries on
a flight that either originated in or is destined for the carrier’s home country.
 It enables airlines to carry passengers from a home country to another
intermediate country (A),
 and then fly on to third country (B) with the right to pick passengers in the
intermediate country.
 Also referred to as "beyond right".
 This freedom is divided into two categories: Intermediate Fifth Freedom Type
is the right to carry from the third country to second country. Beyond Fifth
Freedom Type is the right to carries from second country to the third country.

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FREEDOMS

 Sixth Freedom. The "unofficial" freedom to carry traffic between

two foreign countries via the carrier’s home country by combining
third and fourth freedoms.
 Not formally part of the original 1944 convention, it refers to the
right to carry passengers between two countries (A and B) through
an airport in the home country.
 With the hubbing function of most air transport networks, this
freedom has become more common, notably in Europe (London,
Amsterdam).

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FREEDOMS

 Seventh Freedom. The freedom to base aircraft in a foreign country for

use on international services, establishing a de facto foreign hub.
 Covers the right to operate a passenger services between two countries
(A and B) outside the home country.
 Eighth Freedom. The freedom to carry traffic between two domestic
points in a foreign country on a flight that either originated in or is
destined for the carrier’s home country.
 Also referred to as "cabotage" privileges. It involves the right to move
passengers on a route from a home country to a destination country (A)
that uses more than one stop along which passengers may be loaded
and unloaded.

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FREEDOMS

 Ninth Freedom. The freedom to carry traffic between two

domestic points in a foreign country.
 Also referred to as "full cabotage" or "open-skies" privileges.
 It involves the right of a home country to move passengers within
another country (A).

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THE WARSAW CONVENTION,
1929

 Warsaw Convention for the Unification of Certain Rules Relating to

International Carriage by Air.
 Fixed upper limit for liability
 Responsibility
 Insurance
 Modified by Amendment in 1955 and later on by Agreement in Montreal in
1975.
 Raised the liability as regards airlines flying in or to the US.
 The Montreal Convention, signed in 1999, will replace the Warsaw Convention
system, once Montreal has been ratified by all states.

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WARSAW
 mandates carriers to issue passenger tickets;
 requires carriers to issue baggage checks for checked luggage;
 creates a limitation period of 2 years within which a claim must be
brought (Article 29); and
 limits a carrier's liability to at most:
 250,000 Francs or 16,600 Special Drawing Rights (SDR) for personal injury;
 17 SDR per kilogram for checked luggage and cargo,
 On April 1, 2007, the exchange rate was 1.00 SDR = 1.135 EUR or 1.00 SDR
= 1.51 USD.
 5,000 Francs or 332 SDR for the hand luggage of a traveller.
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WARSAW
 A.3 – Ticket – places of departure and destination
 The carrier shall deliver to the passenger a baggage identification tag for
each piece of checked baggage.
 The passenger shall be given written notice to the effect that where this
Convention is applicable it governs and may limit the liability of carriers
in respect of death or injury and for destruction or loss of, or damage to,
baggage, and for delay.

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BAGGAGE

 deliver to the consignor a cargo receipt permitting identification of

the consignment and access to the information contained in the
record preserved by such other means.
 A. 4(2) - Baggage check shall constitute prima facie evidence of the
registration of baggage.

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LIABILITY OF CARRIER
 A.17 - The carrier is liable for damage sustained in case of death or bodily
injury of a passenger upon condition only that the accident which caused the
death or injury took place on board the aircraft or in the course of any of the
operations of embarking or disembarking.
 The carrier liable for damage sustained in case of destruction or loss of, or of
damage to, checked baggage upon condition only that the event which caused
the destruction, loss or damage took place on board the aircraft or during any
period within which the checked baggage was in the charge of the carrier.
 If the carrier admits the loss of the checked baggage, or if the checked
baggage has not arrived at the expiration of twenty-one days after the date on
which it ought to have arrived, the passenger is entitled to enforce against the
carrier the rights which flow from the contract of carriage.

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COMPENSATION

 A.21 - For damages arising under paragraph 1 of Article 17 not

exceeding 100,000 Special Drawing Rights for each passenger, the
carrier shall not be able to exclude or limit its liability.
 Not liable if:
 (a) such damage was not due to the negligence or other wrongful act
or omission of the carrier or its servants or agents; or
  (b) such damage was solely due to the negligence or other wrongful
act or omission of a third party.

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BAGGAGE AND CARGO

 In the case of damage caused by delay as specified in Article 19 in the

carriage of persons, the liability of the carrier for each passenger is
limited to 4,150 Special Drawing Rights.
 If he declared the validity more than 1000 SDR at the time of check in
the carrier will be liable to pay a sum not exceeding the declared sum.
 In the carriage of cargo, the liability of the carrier in the case of
destruction, loss, damage or delay is limited to a sum of 17
Special Drawing Rights per kilogram, unless the 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 so requires.

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CONTRACTUAL
PROVISIONS

 Any provision tending to relieve the carrier of liability or to fix a

lower limit than that which is laid down in this Convention 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 Convention.

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JURISDICTION

 The Convention's provision on jurisdiction, Article 33, reflects the U.S.

success in achieving a key U.S. objective with regard to the Convention--the
creation of a ``fifth jurisdiction'' to supplement the four bases of jurisdiction
provided under the Warsaw Convention. Article 33(1), like the Warsaw
Convention, allows a suit to be brought against a carrier in the country:
 (1) of its incorporation,
 (2) of its principal place of business;
 (3) where the ticket was purchased, and
 (4) of destination of the passenger.

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SAFETY CONVENTION

 Montreal Convention for the Suppression of Unlawful Acts against

the Safety of Civil Aviation, 1971.

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DOWNING OF
AIRLINES

 1955 - Shot down of Israel Airline in 1955 by Bulgarian warplanes.

 ICJ – held lack of jurisdiction.
 1973 – Israel shot down Libyan airliner intrude into Israel occupied
Sinai.
 But an ICAO investigation concluded that “such action constitute a
serious danger against the safety of international civil aviation and
criticized for flagrant violation of the principles of Chicago
Convention.

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SHOOTING

 1983 – Soviet jets shot down Korean Airlines.

 In 1984 ICAO suggested amendment to Article 3 of the Convention
dealing with general safety of navigation of civil aircraft.
 rules are formed in cases of interception.
 Annexure II of the rules provides that ‘intercepting aircraft should
refrain from the use of weapons in all cases of interception of civil
aircraft.’

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FLIGHT AT DISTRESS

 A.25 of Chicago Convention – necessary assistance should be given to the

aircraft at distress.
 Such situations use of force will be illegal.
 If an aircraft involved in an act of aggression or terrorism – right of self
defence.
 The force used must be proportionate.
 1988 – shooting of an Iranian civil airliner by US Warship Vincennes.
 Case came before the ICJ in 1989 – finally withdrawn and settled mutually.

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SHOT

 1996 – Cuban military aircraft shot down two civil aircrafts.

 ICAO reiterated the principles:
 1. non use of force against civil aircraft
 2. lives of persons and safety of the must not be endangered.
 State must prevent the use of civil aircraft inconsistent with the aims
of Convention.

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INDIA
 The Indian aviation industry is one of the fastest growing aviation
industries in the world.
 India has 454 airports and airstrips; of these, 16 are designated
international airports.
 Private airlines account for around 75 per cent share of the domestic
aviation market.
 In 2007-08 India has jumped to 9th position in world's aviation market
from 12th in 2006.
 Between May 2007 and May 2008, airlines have carried 25.5 million
domestic and 22.4 million international passengers.

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HISTORY

 Post war period – INA, Tata Airways, Bharat Airways, Kalinga Airways
 1953 – nationalization
 1972 – creation if International Airport Authority
 1986 – National Airport Authority
 1994 – Airports Authority of India
 Liberalization of the sector

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INDIAN CIVIL AVIATIO
N POLICY (DRAFT) 200
0
 Mission: To maintain a competitive civil aviation environment which
ensures safety and security in accordance with international
standards, promotes efficient, cost-effective and orderly growth of
air transport and contributes to social and economic development
of the country.
 Aircraft Act, 1934
 Aircraft Rules, 1937
 Carriage of Dangerous Goods, 2003

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