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status as operator by virtue of the fact that another person commits an act of unlawful interference. General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 1(f). 235Under Article 4, the operator’s liability is limited or capped, based on the weight of the aircraft,
rangingfrom 750,000 Special DrawingRights (SDRs) for the smallestaircraftto 700,000,000 SDRs for the largest aircraft. The liability cap may be broken in exceptional circumstances. Under Article 23, where the total amount of damages exceeds the limits of liability of the operator under Article 4, plusthe amountspayablebytheInternationalFundunderArticle18,paragraph2(i.e.,the amountof damages exceeds the .rst and second layers), a person who has suffered damage may claim additional compensation from the operator. To succeed, the person must prove that the operator or its employees have contributed to the occurrence of the event by an act or omission done with intent to cause damage or recklessly and withknowledge thatdamage would probably result. Where an employee has contributed to the damage, the operator shall not be liable for such additional compensation if it proves that an appropriate system for the selection and monitoringof its employ-ees has been established and implemented. Paragraph 4 of Article 23 sets out the circumstances where the operator or its senior management shall be presumed not to have been reckless.
236The Convention’s scope covers acts of unlawful interference. As de.ned in the Convention, an “act of unlawful interference” means an act which is de.ned as an offence in the Convention for the Suppression of Unlawful Seizure of Aircraft, Signed at The Hague on 16 December 1970, or the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Signed at Montre′al on 23 September 1971, and any amendment in force at the time of the event. The Hague Convention of 1971 de.nes an act of unlawful interference in Article 1 as an act committed by “any person who on board an aircraft in .ight unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of that aircraft, or attempts to perform any such act, or is an accomplice of a person who performs or attempts to perform any such act.” The Montreal Conventionof1971 de.nesthe offencein Article1 asanactof violenceagainstaperson on board an aircraft in .ight if that act is likely to endanger the safety of that aircraft; or destruction of an aircraft in service or damage to such an aircraft which renders it incapable of .ight or which is likely to endanger its safety in .ight; or the placement or cause for placement on an aircraft in service, by any means whatsoever, a device or substance which is likely o destroy that aircraft, or to cause damage to it which renders it incapable of .ight, or damage which is likely to endanger its safety in .ight; or destruction or damage to air navigation facilities or interference with their operation, if any such act is likely to endanger the safety of aircraft in .ight; or communication of information which the perpetrator knows to be false, thereby endangering the safety of such aircraft in .ight. These categories of action are extended to persons who attempt to commit such acts or act as accomplices in the performance of such acts.
237An aircraft is considered to be “in .ight” at any time from the moment when all its external doors are closed following embarkation or loading until the moment when any such door is opened for disembarkation or unloading. General Risks Convention, DCCD Doc No. 42, ICAO, Montreal, 1 May 2009, Article 1(c).
focus on principles of State liability for private acts of unlawful interference with civil aviation which forms a distinct body of international law, the absence of consideration of which in the Convention has been questioned both by the airline industry, practicing lawyers and the academic world.
The Convention, in its Preamble gives its rationale as having emerged through an initial recognition of the States Parties that acts of unlawful interference with aircraft which cause damage to third parties and to property, have serious con-sequences and that that there are currently no harmonized rules relating to such consequences. The States Parties also recognized the importance of ensuring protection of the interests of third-party victims and the need for equitable compen-sation, as well as the need to protect the aviation industry from the consequences of damage caused by unlawful interference with aircraft. Accordingly, it was con-cluded there was a compelling need for a coordinated and concerted approach to providing compensation to third-party victims, based on cooperation between all affected parties. It was therefore reaf.rmed that there should be an orderly devel-opment of international air transport operations and smooth .ow of passengers, baggage and cargo in accordance with the principles and objectives of the Chicago Convention.238 The approach taken in the convention was therefore to ensure collective State action for harmonization and codi.cation of certain rules governing compensation for the consequences of an event of unlawful interference with aircraft in .ight through a new Convention which would achieve an equitable balance of interests.
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Aviation Security Law 航空安全法(77)
