(c)
Taking from the operator the “no negligence” defence and ensuring adequate
159
recompense
Representatives of the aviation insurers expressed the view that the policy suggested in the Draft Convention, of making aircraft operators absolutely liable for damage to third parties on the surface, would likely have resulted in a substantial increase in claims and settlements160
and therefore the Legal Committee had de.nitely decided on recommending for the new Convention unconditional liability except in four cases:
–
When an aircraft was made use of without the consent of the owner
–
When damage was a direct consequence of armed con.ict or civil disturbance
–
When the operator was deprived of the use of the aircraft by public authority
–
When the injured person was himself responsible for injury due to negligence or other wrongful act161
The Committee believed that the limits should not be set so high as to cause the cost of third party insurance to become an excessive burden to the development of air navigation. Furthermore, it was thought that the limits should be set high enough to cover compensation to third parties in all but extremely rare catastrophic circumstances.162
The basic issues regarding compensation (in chapter 3 of the Draft Convention) were whether the Convention should include provisions indicating that Contracting States would accept certain speci.ed proof that aircraft wishing to .y over their territory were adequately insured according to the terms of the Convention, proof to the effect that:
(a)
The operator was insured for the aircraft in question against his liability under the Convention.
(b)
The insurer was .nancially sound and able to meet his commitments.
159AT-WP/247, 7/12/51, p. 4.
160AT-WP/224, 10 October 51 at 10.
161AT-WP/224, 10 October 51 at 10.
162At that time it was statistically shown that aircraft accidents involving large third party claims
occurred infrequently. See AT-WP/247, 10 October 1951, p. 6.
B. Other Aspects of Responsibility 69
(c) Necessary foreign exchange would be made available so that the compensation could be paid in the currency of the third party.163
Following the recommendations of the Legal Committee, the ATC presented to the Council some draft comments – which included, inter alia, special reduced limits for gliders, since they did not consume fuel, had no weight, making damage caused by gliders minimal.164
It was also recommended to the Council the de.nition of “in .ight” as existing in the 1933 Rome Convention was inappropriate in the case of helicopters as they did not have a landing run.165
It is worthy of note that the Chicago Conference of 1944 did not make any reference to the Rome Convention of 1933 although the Conference encouraged States to give consideration to the early calling of an international conference on private air law for the purpose of adopting a convention dealing with transfer of title to aircraft and to ratify or adhere to a Convention for the Uni.cation of Certain Rules Relating to the Precautionary Attachment of Aircraft, also done in Rome in 1933. Following the Chicago Conference, the Interim Assembly of PICAO in 1946 also made no mention of the Rome Convention of 1933 relating to damage caused by aircraft to third parties on the surface.
At its .rst session of the ICAO Assembly in 1947, certain delegates pointed out that their Governments had been advised not to ratify that Convention in view of the changing conditions of air transport. Consequently, task of revising that Convention was placed on a sub-Committee, and thereafter by a Commission and the Plenary of the Assembly itself, which examined the work programme of the Legal Committee which had just been established by that Assembly. A high priority was given to that revision; discussions having followed immediately after the questions of recogni-tion of rights in aircraft, the Warsaw Convention and de.nitions.
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