223See generally Abeyratne(2006, pp. 185–212).
224Convention on International Civil Aviation, ICAO Doc 7300, 9th edn, 2006, See supra note 5.
A. The Two Liability Conventions 97
direct exposure to the likelihood of imminent death or bodily injury.225 The term “recognizable psychiatric illness” has not been de.ned in the Convention, which has seemingly left the matter to judicial interpretation if litigation were to arise where this provision is invoked. Although there is a distinct cursus curiae admitting of compensation for mental injury which is caused as a direct result of bodily injury,226 this is .rst instance of legislative provision inprivate air law that allows for compensation for mental injury causedfrom direct exposure to the likelihoodof imminent death or bodily injury.
2. Speci.c Features of the Convention
The Convention applies to damage to third parties which occurs in the territory of a State Party caused by an aircraft in .ight on an international .ight, other than as a result of an act of unlawful interference.227 It is not applicable to damage causedby State aircraft, which are deemed to be aircraft used in military, customs and police services. There is also the possibility that a State may declare that the Convention regime applies to its domestic .ights.228 The operator is liable for damage sustained by third parties upon condition only that the damage was caused by an aircraft in .ight.229
The operator is strictly liable for each event based on the weight of the aircraft involved. The weight categories and amounts are identical to those found in Article 4 of the Unlawful Interference Compensation Convention. In effect, the overall strict liability of the operator is capped. However, these limits only apply if the operator proves that it was not negligent or that the damage was solely due to the negligence of another person. The consequence of this potential unlimited liability of the operator is that the General Risks Convention does not provide for an International Fund and related provisions. The drafters felt that historically, damage to third parties from general risks has always been compensated, and does not pose a threat to the whole air transport industry.
The Exclusive Remedy provision provides that any action for compensation for damage to third parties brought against the operator can only be brought subject to the conditions in the Convention. The provision is intended to prevent the claimant from invoking or relying on other sources of law to try to circumvent the provisions of the Convention such as those relating to liability. The Convention provides that claims against the operator can only be brought according to the conditions and
225General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 2.1.
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