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The ICAOinitiative to convene the two conferences has its genesis in the effort of the Organization to modernize the Rome Convention of 1952213 which addressed damage caused to thirdparties on the surface by foreign aircraft.214 It must, however be noted that even before ICAO was established in 1944 by the Chicago Conven-tion215 there were established principles pertaining damage caused by an aircraft in .ight to persons or property on the surface whichgave rise to a right to compensation
212The Rome Convention of 1952 entered into force in February 1958 and was rati.ed by only 46 States Parties, a fact which largely brings to bear its irrelevance to modern day exigencies of liability in air transport. During the 31st Session of the ICAO Legal Committee in September 2000, a formal proposal made by Sweden calling for the modernization of the 1952 Rome Convention under the aegis of ICAO received the endorsement of the Committee. Inspiration for initiating the modernization process was drawn from the adoption of the Montreal Convention of 1999, which the 30th Session of the Legal Committee in 1997 had initiated and which entered into force on 4 November 2003. The Legal Committee, at its 31st Session had recognized that the Montreal Convention enhanced the rights of claimants in respect of death or bodily injury of passengers, and that such rights should also be given formal recognition through treaty with regard to damage to third parties on the surface. Subsequently, in 2002, the Council considered a Secretariat study on the subject and agreed to establish a study group to assist the Secretariat in future work. The Secretariat developed a draft Convention with the assistance of this Study Group.
213The Rome Convention of 1952 entered into force in February 1958 and was rati.ed by only 46 States Parties, a fact which largely brings to bear its irrelevance to modern day exigencies of liability in air transport. During the 31st Session of the ICAO Legal Committee in September 2000, a formal proposal made by Sweden calling for the modernization of the 1952 Rome Convention under the aegis of ICAO received the endorsement of the Committee. Inspiration for initiating the modernization process was drawn from the adoption of the Montreal Convention of 1999, which the 30th Session of the Legal Committee in 1997 had initiated and which entered into force on 4 November 2003. The Legal Committee, at its 31st Session had recognized that the Montreal Convention enhanced the rights of claimants in respect of death or bodily injury of passengers, and that such rights should also be given formal recognition through treaty with regard to damage to third parties on the surface. Subsequently, in 2002, the Council considered a Secretariat study on the subject and agreed to establish a study group to assist the Secretariat in future work. The Secretariat developed a draft Convention with the assistance of this Study Group.
214See generally Abeyratne(2006, pp. 185–212). 215It 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
A. The Two Liability Conventions
on proof only that damage exists and that it is attributable to the aircraft concerned. These principles were established by the Rome Convention of 1933.216 This Con-vention included provisions for damage caused by an object of any kindfalling from the aircraft, including in the event of the proper discharge of ballast or of jettison made in case of necessity and instances where damage was caused to any person on board the aircraft.217 Exceptions were made in the case of an act unconnected with the management of the aircraft which was committed intentionally by a person other than a crew member and where inability of the operator, his servants or agents to prevent such an act was evident. For purposes of the Convention, the aircraft was deemed to be ‘in .ight’ from the beginning of the operations of departure until the end of the operations of arrival.218 The operator, on whom liability devolved, was consideredto be any person who had the aircraftat his disposal and who made use of the aircraft for his own account. The Convention, althoughnot based on principles of fault liability, mitigated damages if the person injured was found to have contributed to the damage by his own negligence.
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