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B. Other Aspects of Responsibility
of 250 francs for each kilogramme of the weight of the aircraft154
to a limit not less than 600,000 francs, nor greater than 2,000,000 francs.
A mandatory requirement in the 1933 Convention for insurance coverage gave rise to the need to specify provisions regarding legalities. A Protocol was concluded in Brussels in September 1938155
which linked Article 12 of the 1933 Rome Convention to principles of insurance, giving the insurer the right to invoke a defence (in addition to the defence of contributing negligence) in the event the insurance coverage ceased to have effect; the damage occurred outside territorial limits prescribed in the contract in instances not resulting from force majeure, justi.able deviation of the aircraft; negligence in piloting; or if the damage was the direct consequences of international armed con.ict or civil disorder.
At the 23rd Meeting of the ICAO Legal Committee, held on 21 January 1950, where the Committee was considering a draft Convention to replace the 1933 Convention, the Committee observed that the 1933 Convention not only applied to damage caused through contact but also to damage caused through .re or explosion or any person or things falling from the aircraft.156
The Committee placed on record its view that the 1933 Rome Convention’s de.nition of “in .ight” caused considerable dif.culty, along with its concern with regard to the double system enforced by the Convention of a ceiling of 2,000,000 francs on liability which was made unlimited for gross negligence or wilful misconduct on the part of the operator or his servants or agents or if the operator has not furnished adequate security in accordance with the Convention to cover his liability.157
The Legal Committee suggested that a new Convention should raise the liability of the operator to 6,000,000 francs.
The ICAO Air Transport Committee (ATC), at the 14th Session of the Council, in December 1951, considered a draft Convention developed by the Legal Com-mittee at its 7th Session in Mexico City. The ATC noted that the Mexico City Draft Convention, like the original 1933 Rome Convention, attempted to regulate the liability of aircraft operators to persons on the surface who sustained injury, death or property damage as a result of aircraft accidents involving foreign aircraft. The ATC noted that the Legal Committee wished States to balance legitimate interests of aircraft operators engaged in international air transport against those of the general public who may suffer as third parties in accident involving foreign aircraft.158
154The weight of the aircraft was the weight with total maximum load as indicated in the certi.cate
of airworthiness or any other of.cial document.
155Protocol Supplementing the Convention for the Uni.cation of Certain Rules Relating to
Damage Caused by Aircraft to Third Parties on the Surface (signed at Rome on 29 May 1933)
concluded at Brussels, on 30 September 1938. Article 2 of the Protocol provides that the Protocol
forms an integral part of the 1933 Convention.
156Minutes of the 23rd Meeting of the Legal Committee, Annex VIII Appendix D, p. 355. 157Minutes of the 23rd Meeting of the Legal Committee, Annex VIII Appendix D, p. 357. 158AT-WP/247, 7/12/51, p. 3.
It was recognized that the operator needed protection against the risk of cata-strophic loss and the draft Convention (1952) accorded him this protection by providing that in no one accident shall his liability to third on the surface exceed a certain maximum .gure. On the other hand, it was also noted that the third party on the surface needed the assurance that in accidents in which he suffered loss, he would be able to recover, with a minimum of litigation, the full amount of his damages. The courts gave him this assurance by:
(a)
Allowing him to sue where the damage occurred
(b)
In certain cases a right of direct action against the insurer
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