The draft Convention has shed any connotation of damage caused to persons and property on the surface from its title owing to the fact that Article 9, a new provision, admits of recovery for third parties suffering damage on board aircraft in a mid-air collision from the operator whose aircraft collided with the aircraft in which the aggrieved person was on board. It would be interesting to examine the liability implications and insurance coverage that would address this situation, as
201In 1993, the ICAO Secretariat undertook a study on civil/State aircraft with a view to advising the Council on the various determinants that go to differentiate between the two types of aircraft. The results of that study can be found in C-WP/9835, 22/9/93. 3.
202See generally, Abeyratne (1997, pp. 1–2).
C. The Rome Convention of 1952
both the Warsaw Convention and Montreal Convention allow an aggrieved person to claim compensation from the operator of the aircraft in which he was travelling. The introduction of another avenue of claim would, at least theoretically, double the opportunity of recovery. In 1999, the U.S. Supreme Court in El Al Israel Airlines, Ltd. v. Tseng203
ruled that the Warsaw Convention preempts all state law personal injury actions arising from international .ights. Therefore, in the United States, Courts have recognized the exclusive application of the Warsaw Convention, relying on the United States Supreme Court’s decision in the Tseng case, that the Convention preempts statutory discrimination claims as well as common law claims.204
At its 174th Session, the ICAO Council was presented with the .ndings of the meeting of the Legal Committee held in January 2005, whereby certain general principles agreed upon by the Legal Committee were placed before the Council. The Committee started by observing that protection of the victim in terms of compensa-tion for damage should be comparable at least to the extent of being as good as compensation offered under the Montreal Convention of 1999 and that the main aim of the Convention ought to be to address incidents with an international element, although it was not ruled out that provision should not be made in the Convention to cover domestic incidents. A valid consideration in this regard was that damage envisioned under the Rome Convention was not only to the person concerned but also to his property which might offer him shelter and in some instances his livelihood as well. It was also contended that instances of “catastrophic losses” ought to be well considered and provisions for compensation therefore be well thought out. Any compensation must not endanger the .nancial well being of the operator, which might in turn jeopardize the sustainability of the air transport system. One of the compelling convictions of the Committee was that the system of victim compensation must be suf.ciently durable so as to survive catastrophic events that would threaten the viability and continuity of the air transport system worldwide. The Committee also suggested that due consideration be given to the establishment of a supplementary funding mechanism for compensation that would
203525 U.S. 155 (1999). In Gibbs v. American Airlines, Inc., the Court rejected the plaintiff’s argument that his statutory claims under Section 1981 of the Civil Rights Act were not preempted by the Warsaw Convention because they are based on a federal statute and Congress did not intend for the Convention to impede civil rights statutes. In rejecting the plaintiff’s argument, the Court relied on the United States Supreme Court’s decision in El Al Israel Airlines, Ltd. v. Tseng and the decisions of several other district courts that have held that the Convention preempts statutory discrimination claims as well as common law claims. See also Speiser and Krause (1978,
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